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Full text of "Annual Report Workers' Compensation Appeals Tribunal 1991"


nnual 
Report 



Orft. 

fc/.C.A.T 

mi Cl 



'orkers' Compensation Appeals Tribunal 
ribunal d'appel des accidents du travail 



:» 



ANNUAL REPO 
1991 




Ontario Workers' Compensation Appeals Tribunal 
505 University Avenue 
7th Floor 
Toronto, Ontario 
M5G 1X4 



ISSN: 1181-6031 
©1992 



Digitized by the Internet Archive 
in 2013 



http://archive.org/details/annualreport1991onta_0 



Contents 

INTRODUCTION 

REPORT OF THE 
TRIBUNAL CHAIR 

TRIBUNAL'S PERFORMANCE: 
CHAIR'S ASSESSMENT 

Decision Quality and the Problem of Complexity 

The Hearing Process 

Backlog 

INFORMATION TECHNOLOGY 

ADVISORY CROUP 

ALTERNATE CHAIR 

TRIBUNAL ALUMNI 

HIGHLIGHTS OF THE 1991 CASE ISSUES 



1 
5 

6 

9 

10 

11 

12 

12 



Re-employment Under Bill 1 62 Amendments 


12 


Occupational Stress 


13 


Occupational Disease 


14 


Chronic Pain and Fibromyalgia 


14 


Transfer of Costs Between Employers 


15 


Classification of Employers 


16 


Miscellaneous 


16 


ICIAL REVIEW ACTIVITY 


16 


Other Matters 


17 



THE TRIBUNAL REPORT 

THE APPEAL PROCESS 
VICE-CHAIRS, MEMBERS AND STAFF 

TRIBUNAL COUNSEL OFFICE 

Intake 

Case Description Writers 

Pre-hearing Legal Workers 

Lawyers 

Medical Liaison Office 

Post-hearing Legal Workers 

INFORMATION DEPARTMENT 

Publications 
Library Highlights 

SYSTEMS DEPARTMENT 

Case Tracking 



19 
21 

21 

21 
21 
21 
22 
22 
24 

24 

24 
25 

26 

27 



Page iii 



Annual Report 1991 



YEAR END STATISTICAL SUMMARY 28 

Introduction 28 

Cases Received 29 

Cases Closed 31 

Case Completion Times 32 

Hearings and Decisions 35 

Cases in Inventory 38 

FINANCIAL MATTERS 39 



APPENDIX A 

VICE-CHAIRS AND MEMBERS IN 1991 43 

VICE-CHAIRS AND MEMBERS 

— RE-APPOINTMENTS 45 

VICE-CHAIRS AND MEMBERS 

— EXPIRED APPOINTMENTS 

AND RESIGNATIONS 46 

NEW APPOINTMENTS DURING 1991 47 

SENIOR STAFF 49 

MEDICAL COUNSELLORS 49 

APPENDIX B 

REPORT AND FINANCIAL STATEMENTS 

DECEMBER 31 ,1990 51 



Page iv 



Annual Report 1991 



INTRODUCTION 



The Workers' Compensation Appeals Tribunal is a tripartite tribunal established 
in 1 985 to hear appeals from the decisions of the Ontario Workers' Compen- 
sation Board. It is a separate and self-contained adjudicative institution, 
independent of the Board. 

This report is the Tribunal Chairs and the Tribunal's annual report to the Minister 
of Labour and to the Tribunal's various constituencies. It describes the 
Tribunal's operational experience during the reporting period and covers 
particular matters which seem likely to be of special interest or concern to the 
Minister or to one or more of the Tribunal's constituencies. The reporting 
period for this report is the 1991 calendar year. 

This is the third annual report to be titled "Annual Report" and to cover a 
calendar year. The first three reports, distinctively titled because of their special 
role in recording the Tribunal's formative years, were the First Report, the 
Second Report, and the Third Report. They cover respectively the periods of 
October 1 , 1 985, to September 30, 1 986; October 1 , 1 986, to September 30, 
1 987; and the fifteen-month period from October 1 , 1 987, to December 31 , 
1988. 

This Annual Report comprises, in effect, two reports: The Report of the Tribunal 
Chair and The Tribunal Report. The Report of the Tribunal Chair reflects the 
personal observations, views and opinions of the Chair. The Tribunal Report 
covers the Tribunals activities and financial affairs, and developments in its 
administrative policy and process. 



Page v 



Annua! Report 1991 



REPORT OF THE 
TRIBUNAL CHAIR 



TRIBUNAL'S PERFORMANCE: 
CHAIR'S ASSESSMENT 

It is my considered opinion that again in 1991 the Tribunal may be fairly said to 
have discharged its statutory responsibilities appropriately and efficiently. 
Completion times were better than in 1 990 or 1 989, the quality of decisions 
remained high, the Tribunals procedures and process continued to meet with 
general acceptance, and expenses were held within budget. 

Decision Quality and the 
Problem of Complexity 

In this years assessment, I would like to address the subject of the nature and 
quality of the Tribunals decisions. The quality and appropriateness of its 
decisions are the most important measurements of success for thisTribunal, 
but in recent annual reports I have not had the opportunity to examine the 
Tribunals performance in this key area. 

It is difficult to have standards of decision quality that are capable of a wholly 
objective assessment. The Tribunal, however, has a set of "hallmarks" of 
decision quality against which it measures its decisions. A list of these 
hallmarks is found on page 2. They were approved in written form in 1 989 as 
part of the Tribunal's Statement of Mission, Goals and Commitments and I 
remain confident that they are standards of decision quality that are appropri- 
ate and necessary for this Tribunal. 

Judged against those standards, the general quality of the Tribunals decisions has 
been, and continues to be, in my opinion, excellent. 

I base my opinion most confidently on my own professional assessment of the 
many decisions that I read in the normal course of my duties, particularly those 
which I encounter while administering requests for reconsideration of Tribu- 
nal decisions. However, my opinion is confirmed by a number of objective 
sources. 

These include, first, the informal feedback from professional workers' compen- 
sation advocates. This feedback, while sometimes indicating disappointment 
with the results in particular decisions, continues to reflect a reasonable level 
of respect for the Tribunal's decisions generally. 



Pagel 



Annual Report 1991 



HALLMARKS OF DECISION QUALITY 



The Tribunal is committed to devoting its best efforts to having Tribunal decisions comply 
reasonably with the following hallmarks of a good-quality adjudicative decision: 

(a) It does not ignore or overlook relevant issues fairly raised by the facts. 

(b) It makes the evidence base for the panel's decisions clear. 

(c) On issues of law or on generic medical issues, it does not conflict with previous Tribunal 
decisions unless the conflict is explicitly identified and the reasons for the disagreement 
with the previous decision or decisions are specified. 

(d) It makes the panel's reasoning clear and understandable. 

(e) It meets reasonable standards of readability. 

(f) It conforms reasonably with Tribunal standard decision formats. 

(g) From decision to decision the technical and legal terminology is consistent. 

(h) It contributes appropriately to a body of decisions which must be, as far as possible, 
internally coherent. 

(i) It does not support permanent conflicting positions on clear issues of law or medicine. Such 
conflicts may occur during periods of development on contentious issues. They cannot be 
a permanent feature of the Tribunal's body of decisions over the long term. 

(j) It conforms with applicable statutory and common law and appropriately reflects the 
Tribunal's commitment to the rule of law. 

(k) It forms a useful part of a body of decisions which must be a reasonably accessible and 
helpful resource for understanding and preparing to deal with the issues in new cases and 
for invoking effectively the important principle that like cases should receive like treatment. 



A second source is the reports that the Ombudsman makes to the Tribunal 
following her investigations of Tribunal decisions pursuant to complaints that 
she receives from workers or employers who have been unsuccessful at the 
Tribunal. In the first place, the number of Ombudsman complaints in 
workers' compensation matters has dropped dramatically from pre-1985 
levels. This in itself indicates increased acceptance ofTribunal decisions, even 
by losing parties. More to the point, however, is that a high proportion of 
these complaints are found by the Ombudsman to be unsubstantiated. Her 
reports to the unsuccessful complainants, following a full investigation by her 
expert workers' compensation staff, continue to reflect a thorough respect for 
the general quality of the Tribunal's decisions. 

A third source of objective confirmation of the decisions' quality is the small 
proportion of decisions which are the subject of applications to the courts for 
judicial review and the respect that the Divisional Court has given to the 
decisions which have come before it. 



In 1 991 the Ombudsman reported on complaints in 106 cases and found reason 
to doubt the reasonableness of the decision in only six. (These were treated by the 
Tribunal as amounting to a request for reconsideration and were referred to 
reconsideration panels.) 



Page 2 



Annual Report 1991 



The 1990 Coopers and Lybrand Report, which was referred to in the 1990 
Annual Report, also confirmed the quality of Tribunal decisions. The Tribu- 
nal, it said, "renders high-quality adjudicative decisions which are fair, 
balanced, consistent and fully-reasoned". 

However, as good as the decisions may be, it is essential to recognize that the 
Tribunal frequently finds itself unable to write them in language simple 
enough for the parties to the case to understand. The Coopers and Lybrand 
Report noted this reality and while praising the general quality of the decisions 
called for increased efforts at simplifying the language. 

I believe it is important that the permanent record of the Tribunals work, which 
these annual reports provide, include a full examination of this problem of the 
complexity of Tribunal decisions. It is for that purpose that I address the 
problem here. 

The problem, I note, is not in fact as extensive as is sometimes thought. The 
length of decisions is usually seen as one of the indicators of complexity and 
statements about the complexity of the Tribunals decisions are unduly influ- 
enced by what seems to be a general impression that the Tribunal's decisions 
are typically long decisions. That impression is mistaken. 

When the ordinarily very short decisions on issues such as access to files are 
excluded, and the remaining 636 decisions (in effect, the decisions about 
entitlement and the level of benefits) that were released in 1 991 are listed in 
order of the length of decision, the following information emerges: 

1 . The first 25 per cent (1 59) of the decisions on that list average 
4.2 pages. 

2. The second 25 per cent, 6.2 pages. 

3. The third 25 per cent, 8.0 pages. 

4. The final 25 per cent, 1 5.9 pages- 

5. The median decision length is 7.0 pages. 

6. Only 26 decisions (4 per cent of the total) exceed 20 pages and 
only four decisions run to 50 pages or more. 

I must also emphasize that the Tribunal has always valued and encouraged simple 
and readable writing. To that end we have organized in-house decision-writ- 
ing seminars and have supported decision-writing programs offered by other 
organizations. We have also acquired a grammar and style checking computer 
program. This program analyzes writing against various standards of simplic- 
ity, and our decision writers are encouraged to check their writing from time 
to time through analysis by that program. In my opinion, for the most part, 
the Tribunal's panel chairs do write clearly and simply. 

The fact remains, however, that many of our decisions will not be understandable 
to some of the parties to the case. The Tribunal often has to rely on the parties' 
professional representatives or its own staff to explain the decision to the 
parties. This situation is highly regrettable, but theTribunal's constituencies 
must understand that for a significant number of cases the situation cannot be 
corrected. It is a problem that stems from the very nature of the workers' 
compensation subject and is built into the role which the Tribunal must play 
in the workers' compensation system. 



Page 3 



Annual Report! 991 



The difficulty is rooted in the Tribunals commitment to explaining fully in 
writing why it came to the conclusion that it did in a particular case and why 
it could not accept the submissions of the unsuccessful party. The Tribunals 
obligation to give reasons for its decisions is specified in the statute, but full 
reasons for the decisions are also essential from a policy point of view. The 
problem with the commitment to full reasons, however, is that these reasons 
frequently are inescapably complex. 

This unavoidable complexity has a number of roots. 

First, the nature of the Tribunals reasons is to a large extent dictated by the nature 
of theTribunals role within the workers' compensation system. As the final 
appeal body in a system where there is no right of appeal to the Courts, the 
Tribunal is responsible for functions that go well beyond making fair decisions 
in individual cases. They include the resolution, on a consistent and system- 
wide basis, of problems that involve: ambiguous statute language; the 
definition of the limits of entitlement in cases at the margins of the system's 
coverage; controversial medical or scientific issues; and the supervision of the 
system's commitment to treating like cases in a reasonably like manner. To 
properly fulfil these functions theTribunals decisions must be concerned with 
underlying principles and reconciling themes. 

Second, the factual, medical, scientific and legal issues facing the Tribunal are 
often, unavoidably complicated. Cases that reach the Tribunal (about 1 to 2 
per cent of the system's total caseload) commonly involve such issues as 
jurisdiction, standards of proof, the role of presumptions, the implications of 
epidemiological studies, burdens of proof, conflicting or inconclusive expert 
medical or scientific evidence, retroactivity, the interpretation of ambiguous or 
deficient statute language - to name only some. Furthermore, these issues 
have to be considered in the context of cases where the extent of disabilities is 
not always self-evident, the often multiple causes of disabilities are frequently 
obscure and/or medically or scientifically complex, and the connection of 
disabilities to the workplace is not always plain. 

Third, as the final level of appeal in the compensation system, the Tribunal must 
make decisions that are inherently provocative. The statute has established a 
system that provides some disabled members of society with income replace- 
ment benefits, but denies them to others. It then makes private businesses 
responsible for funding the system. The controversial nature of the issues that 
arise from such a system, and their large impact on the parties involved, call 
upon the Tribunal for especially thorough explanations of its decisions. 

Finally, theTribunals role requires its panels to write reasons in individual cases 
that will serve the purposes of more audiences than just the worker or employer 
parties in that case. Other groups to whom the decisions must be addressed 
include: the WCB's administrators and the WCB's board of directors; other 
Tribunal adjudicators considering future cases or who may be called upon to 
reconsider the decision in question; Tribunal professional staff; the system's 
stakeholders and their professional advisers; workers' compensation profes- 
sional advocates and advisers; prospective parties and their representatives in 
future cases; the government, opposition parties and their expert advisers; the 
media; and, on occasion, the Courts. 



Page 4 



Annual Report 1991 



To meet the needs of these audiences, the reasons must be comprehensive, 
technically sound, and persuasive. Furthermore, they must relate in compat- 
ible language to relevant professional literature in the medical, scientific and 
legal fields. 

Given all of these circumstances, the hard truth is that simplicity is frequently not 
an option. 

I am, of course, aware of some feeling within the employer and worker commu- 
nities that it is only since the creation of the Appeals Tribunal in 1 985 that the 
workers' compensation subject has become complicated. I do not, however, 
accept any cause-and-effect relationship. The complexity has always been 
there; the difference is that now it must be made public. The Tribunal is 
merely the designated messenger. 

The Hearing Process 

Another aspect of the Tribunal's performance which I should like to address 
particularly is the quality and appropriateness of the Tribunal's hearing process. 
Coopers and Lybrand had reported "an overwhelming perception" of the 
client communities that the Tribunal's process was "ponderous and overly 
legalistic" and that "panels do not have sufficient control over the decision 
process because of the role of staff ". 

In the 1 990 Annual Report, I recorded our "particular surprise" at these criticisms 
of the adjudicative process. They seemed to be remarkably inconsistent with 
the generally positive feedback on the adjudicative processes that by 1 989 my 
colleagues and I were commonly receiving from our usual contacts within the 
employer and worker communities. As reported in the 1 990 Annual Report, 
in response to those criticisms the Tribunal Chair and Alternate Chair had 
embarked on a series of meetings with the major players in both the worker 
and employer communities throughout the Province to hear dieir views on 
the Coopers and Lybrand Report, and in particular on the Coopers and 
Lybrand criticism of the adjudicative process. 

Those meetings were completed early in 1 991 and confirmed to our satisfaction 
that indeed the criticism of the process was, as of that time at least, unwar- 
ranted. 

I should mention that the role of staff in the pre-hearing identification of issues 
has been adjusted since 1 989 so that substantial decisions affecting the conduct 
of a case are now almost always decided in the first instance by the hearing 
panel. (They had always been decided ultimately by the hearing panels but 
interim staff determinations made in anticipation of the hearing panels' wishes 
and in an effort to shorten the hearing process had been the source of client 
frustration). Thus, one of the Coopers and Lybrand criticisms was in the 
course of being corrected while its report was in progress. 



Page 5 



Annual Report 1991 



I am satisfied that the Tribunals hearing processes are fair and effective, and if the 
Coopers and Lybrand "legalistic" criticism is meant to refer to a preoccupation 
with rules for their own sake, I am also satisfied that that criticism is not 
justified. In a hearing process dealing with complex and contentious issues 
which are often of great significance to the parties, considerations of both 
fairness and efficiency as well as principles of law require some structure and 
predictability in the process. We have, accordingly, established such practice 
directions as we have found to be necessary for those purposes. Furthermore, 
each of our hearing panels will normally conduct its hearings in accordance 
with a common hearing structure that we have found to be fair and efficient. 
But from the Tribunal's inception we have been committed to the rejection of 
any preoccupation with rules for their own sake. 

As with the quality of decisions, I base my opinion concerning the appropriate- 
ness of the Tribunals procedures and process most importantly on my own 
professional judgment in such matters but that opinion is buttressed by a 
number of objective indicators: the information obtained through the 1990 
meetings with stakeholders; the ongoing feedback received routinely from the 
employer and worker communities; the reaction of people newly appointed to 
Tribunal adjudicative positions with previous experience of the process of 
other tribunals; and the high level of satisfaction with the process of the 
Tribunals own members. It is, in my view, especially significant that the 
worker arid employer members who are representative of their communities' 
interests at the Tribunal, also indicate a high level of satisfaction with the 
Tribunals processes. 

Backlog 

During the latter part of the reporting period, I was asked to respond to a 
questionnaire administered to all agencies pursuant to a Management Board 
review of agencies, boards and commissions. One of the questions was 
whether we had a backlog situation. 

In the course of answering that question, I found it necessary to discuss my 
understanding of the concept of backlog, and I think both the answer and that 
discussion are important enough to be repeated here. 

If the backlog question is whether there are cases piled up at the Tribunal's door 
which the Tribunal isn't getting to, the answer is no. We are able to deal with 
cases as they come in. But the question, of course, is not that simple. 

In responding to an inquiry about backlogs it is important that the terminology 
be clear. If one conceives of the Tribunal's process as a pipeline, then a backlog 
is caused by unplanned or undesirable constrictions at various places in the 
pipeline. And if there are no constrictions of that nature, there is no backlog, 
even though the pipeline will be full of cases at various stages of completion. 
The number of cases that would be in the pipeline if there were no unplanned 
or undesirable constrictions is, in my terminology, the Tribunal's workload, and 
the number of cases that are there because of such constrictions is the Tribunal's 
backlog. The backlog and the workload together comprise the inventory of 
cases at the Tribunal. 

The Tribunal's inventory of cases totalled 1,335 at the end of 1991. This 
contrasts with 1,541 at the end of 1 990, 1,612 at the end of 1989 and 2,009 
at the end of 1 988. This steady reduction has been achieved in a period when 
the incoming caseload has been about the same each year. 



Page 6 



Annual Report 1991 



Deciding whether cases are in the pipeline only because of unplanned or 
undesirable constrictions is a judgment call on a number of levels. 

First, ail processes have planned constrictions that are considered desirable or at 
least acceptable. These consist, on the one hand, of the process elements 
themselves as they have been selected and designed by the process designers 
and, on the other, of the reasonable limitations on the resources available to 
operate such elements. 

Thus, the creation of an external appeals tribunal extended the time it takes to 
finally complete a workers' compensation case, and the nature of the resources 
made available to the tribunal determined ultimately the length of that 
extension. A WCAT example at a less macro level would be the pre-hearing 
review of the sufficiency of the medical evidence in the file. The time it takes 
to do that review extends the time it takes to complete the appeal, and the 
number of staff employed on the review determines the length of that 
extension. 

Whether the reasons for the pre-hearing medical review justify adding any 
additional time to the appeal process and, if they do, how much time - and 
therefore what limitations on the resources applied to the review are warranted 
- are, like the question about the existence of theTribunal, questions on which 
reasonable people may differ. Answers to these questions require personal 
judgments about what constitutes an adequate adjudication process and about 
how the needs of such a process can be most efficiently and effectively met, 
and about how much time it is reasonable or fair to devote to the process. 
Furthermore, they assume the availability of such funding as can be demon- 
strated to be required for the efficient operation of the elements of the process 
which have been judged to be necessary. 

The various elements of the Tribunal's process are always under review and are 
subject to continual adjustments in response to the Tribunal's developing 
experience. For example, in 1 992 we will experiment with the increased use 
of pre-hearing conferences in out-of-Toronto cases. But, at this point in time, 
the process elements and the resources we are applying to those elements reflect 
my colleagues' and my best judgment as to what is fundamentally necessary to 
perform the Tribunal's statutory assignment within an acceptable time frame. 

There is also, then, the question of whether the agreed upon resources are being 
applied to the accepted elements as efficiently as possible. Could a particular 
element of the process be done faster by organizing and managing it better? 
Thus, is it necessary for the pre-hearing work to take, on average, 40 days, or 
with better organization could it be done in 30? Again, this is question of 
judgment. 

For anyone who disagrees with these judgments, the number of cases in the 
pipeline which in their opinion wouldn't be there if there were a different 
process design (if we didn't, for example, do a pre-hearing review of medical 
evidence), or if there were a bigger budget, or if the system were organized and 
managed better, will be fairly regarded as backlog. 



Page 7 



Annual Report 1991 



It currently takes a typical entitlement case about 7.5 months to make its way- 
through the Tribunals process from beginning to end. In 1985, when the 
Tribunals process was first being planned, the goal of an average six-month 
turnaround time was regarded as reasonable. In 1988, the Tribunal Chair 
accepted the then Minister of Labours request that the goal for the average 
turnaround time be reduced to four months. But here we are at the end of 
1 991 experiencing a typical turnaround time of 7.5 months. 

Thus, if our own 1 985 judgment were still considered sound, we would say that 
the Tribunal was currently running about 1.5 months behind our goal, or that 
we had a backlog of about 267 cases (1 .5/7.5 of the inventory at the end of the 
reporting period). If the 1988 goal of four months is still considered a 
reasonable goal, our backlog is about 623 cases. 

It is my own view that the Tribunal's process design has demonstrated its validity 
and there are no elements of the present design which are not necessary for the 
Tribunal to accomplish its role as that role is defined by the statute. 

As far as the efficiency of the operation is concerned, I still think it may be possible 
to reduce the typical turnaround time perhaps to about seven months. We 
will know better after we have had the assistance of the new case tracking 
system for a few months. 

However, barring a substantial budget increase, six months or four months can 
now both be seen, in my view, to be unrealistic goals. Indeed, given that almost 
four months is typically devoted to negotiating a hearing date with the parties 
and then waiting for the agreed hearing date, neither goal would be feasible, 
even with additional resources, without reverting to arbitrary hearing dates, an 
approach that has been proven not to be acceptable to the parties or their 
representatives. 

If a seven-month typical turnaround time turns out to be reasonable, then, 
relative to that standard, we are currently running a backlog, overall, of about 
89 cases. 

One segment of the Tribunals pipeline in which there is evidence of a backlog- 
creating constriction is decision writing. The overall achievement of writing 
decisions within 60 days on average is not, given the increasing complexity of 
our cases, significantly out of line, if at all. However, we continue to have a 
batch of especially old cases that take over 12 months to complete after they 
reach a ready-to- write status. The number of these is not large in the overall 
scheme of things (there are about 30 of these cases at any one time), and they 
are inevitably highly complicated and difficult cases which may be expected to 
take several months to complete in the best of circumstances. However, this 
batch of cases is larger than is necessary, and we are making every effort to bring 
the writing of these cases under better control. 

One of the things about pipelines that it is very important to bear in mind in this 
era of increasingly restrained budgets is that reductions in available resources 
for operating a pipeline do not lengthen the pipeline; they can only be met 
either through more efficient operation or by shortening or narrowing the 
pipeline. 



Page 8 



Annual Report 1991 



There is an intuitive tendency to think of the consequences of cutbacks in the 
funding of adjudication activities in terms only of added delays, to see them, 
in effect, as merely lengthening the pipeline, but this is an optimistic and 
wrong view. Once the potential for more efficient operation of existing 
process elements has been exhausted, and further shortening of the pipeline 
(the outright elimination of some of the process elements) has proven imprac- 
ticable (or illegal), then the final effect of remaining resource cutbacks will be 
to narrow the pipeline and thus to altogether prevent the tribunal from 
performing some proportion of its statutory responsibilities. 

If the resources available to a tribunal were reduced to the point that permitted 
the processing of only 75 cases a month when 100 were being received, a 
tribunal would be faced with a backlog that was always growing. In the short 
run, the true implications of such a cutback would be obscured by the fact that 
the change will be evidenced only by finite additional delays in individual cases 
as appellants waited for their cases to enter the pipeline (once in the pipeline, 
the process time would be the same). But the underlying reality would be that 
the tribunal is now equipped to process only 75 per cent of the cases arising 
under its statute. 

To date, this Tribunal has not been faced with any such conundrum, and I 
mention it here only because of the general environment of "deep" budgetary 
restraint, and of the particular importance in such an environment of keeping 
the thinking clear. 



INFORMATION TECHNOLOGY 

As 1990 drew to a close, the Systems Department, in conjunction with the 
Tribunal's Chief Information Officer, completed a plan for a major enhance- 
ment of the Tribunals information technology. This included a business case 
that was submitted to Management Board of Cabinet in February 1 991 . The 
major emphasis of this document was the need to correct a serious overload 
situation that existed as a result of an increasing dependence on the use of 
automation in the processing of appeals. The existing five-year-old computer 
system had assumed an indispensable role in the daily production of all 
documents relating to the approximately 1 ,200 decisions theTribunal issues 
annually. It was also used extensively for internal and external documents and 
correspondence. This overload situation had led to unsatisfactory response 
times, and stood in the way of the development of new end-user applications. 
Concern over the anticipated effects of Bill 162, which is expected to signifi- 
cantly increase the Tribunal s case load, made the need to upgrade even greater. 

Management Board of Cabinet approved the business case and a tender was 
released in May. A contract was reached a short time later. The installation of 
a significantly enhanced computer system followed, and its testing and evalu- 
ation are expected to continue into the early part of 1 992. The new system 
was selected for its ability to support current computer applications as well as 
the development of new ones. Case Tracking is the first new project to be 
undertaken. 



Page 9 



Annual Report 1991 



The past five years have seen a substantial decrease in cost and corresponding 
increase in speed and capacity of computer equipment. This trend was an 
added incentive to upgrade, enabling the Tribunal to implement a cost-effec- 
tive, case tracking system - the original ideas for which had to be shelved in 
the past due, in important measure, to inadequate computer resources. As of 
the end of the reporting period, the new case tracking system is in the final 
stages of software development and testing. Its aim is to provide more 
up-to-date statistical information about cases and case load, with faster and 
easier access to this information. Implementation is scheduled to commence 
in Febmary 1 992, beginning with the Records and Intake departments, and 
will continue with other departments as the year progresses. 



ADVISORY GROUP 

In the summer of 1985 when the Tribunal was in the planning stages, I had 
organized an ad hoc group of interested parties which we called the Advisory 
Group and which served as a convenient forum for constituency feedback on 
our plans, particularly our plans for the hearing process. 

That group was very successful, in my view, in ensuring that what we did in the 
development of the Tribunal we did with a full understanding of the constitu- 
encies' concerns and that where we did things that did not meet with the 
constituencies' approval there had a least been full opportunity for input from 
them and for explanation from us as to the reasons for not accepting the 
constituencies' views. A description of the Advisory Group and its role 
appeared in the Tribunal's First Report. 

As the Tribunal emerged from its developmental phase the need for such a group 
was not felt as strongly by me or the Tribunal and this, coupled with the 
unmanageable size to which the Group had grown, led to the concept falling 
into disuse. The last meeting of the Group in its original form took place in 
the spring of 1 988. Thirty-four people attended that meeting, not counting 
Appeals Tribunal members and staff. 

One of the themes in the Coopers and Lybrand Report was a concern about the 
Tribunal's accountability to its client communities, and the report recom- 
mended a renewed commitment to the idea of an Advisory Group. This 
recommendation coincided with a growing interest within the communities, 
and at the Tribunal as well, for a forum for routine consultation on process and 
administrative issues and led in the spring of 1 991 to the establishment of a 
steering committee for the development of a new Advisory Group. The 
Steering Committee met on March 6, 1991. The new Advisory Group, 
consisting of five representatives from worker and employer organizations 
respectively and senior representation from the Tribunal's members and staff, 
met for the first time on September 11,1 991 . It has been agreed that it will 
meet regularly, probably on a bimonthly basis. The Group's "Charter" may 
be seen in the following extract from my memorandum to the Group 
dated April 12, 1991: 



Page 10 



Annual Report! 991 



The Tribunal's (Commitment 

The Tribunal is interested in participating fully in the Advisory Group and, 
on behalf of the Tribunal, the Tribunal Chair makes the following commit- 
ments: 

1. The Tribunal will participate in regular meetings of the Advisory 
Group held at regular intervals, as decided by the external members 
of the Group. 

2. The Tribunal representation in the Group will continue to include 
the Tribunal Chair and Alternate Chair as well as experienced worker 
and employer members of the Tribunal. 

3. The Tribunal will provide to die (Croup information about the Tribunal 
and its operations as requested by the external members, provided that 
obtaining such information is practicable and not inconsistent with 
any confidentiality requirements or other obligations. 

4. The Tribunal will also provide the Group with an opportunity for in- 
put on any changes of strategic significance which die Tribunal is 
proposing in its administrative, practice or procedure policies. 

5. The Tribunal undertakes to give careful consideration to criticisms or 
proposals emanating from the external members of the Group, and 
to report to the Group its decisions in such criticisms or proposals. 



ALTERNATE CHAIR 

The Alternate (Chair position at this Tribunal has always been a major element in 
the Tribunals organizational structure and coming into 1991 the Tribunal had 
had the benefit of two very strong and capable incumbents: Jim Thomas from 
the Tribunals inception in 1985 to April 1988, when he accepted appointment 
to an Assistant Deputy Minister position at the Human Resources Secretariat 
and his successor Laura Bradbury. 

In July 1 991 , the office became vacant a third time when Ms. Bradbury accepted 
appointment as the (Chair of the Social Assistance Review Board, and it is with 
great pleasure that I now record in this Report that I was able to persuade 
Maureen Kenny to take on the responsibilities of that office in Ms. Bradbury's 
place. Her tenure in the position commenced September 1 , 1 991 . 

Maureen Kenny joined the Tribunal originally in 1 985 as Counsel to the (Chair 
and in that position she played an extremely important role in the develop- 
ment of the Tribunals early jurisprudence. She left that position in July 1 987, 
when she accepted an appointment as one of the Tribunals vice-chairs, a role 
that she, of course, continues in her new position as Alternate (Chair. 



Page 1 1 



Annual Report 1991 



TRIBUNAL ALUMNI 

In addition to Laura Bradbury's appointment as Chair of the Social Assistance 
Review Board, 1 991 saw the Tribunal honoured by two other senior appoint- 
ments for its members. Sandra Chapnik, a part-time Tribunal Vice-Chair, was 
appointed a justice of the Ontario Court, General Division, and Nicolette 
Carlan, a full-time Vice-Chair, was appointed chair of the Industrial Disease 
Standards Panel. 



HIGHLIGHTS OF THE 1991 CASE ISSUES 

This section of my Report continues the tradition of highlighting legal, factual, 
medical and other interesting issues addressed by the Tribunal during the 
reporting period. Unfortunately, it is never possible to do more than note a few 
areas which I found to be of particular interest. The issues are presented in no 
particular order of importance. 

Re-employment Under Bill 162 Amendments 

This reporting period saw the release of the first Tribunal decisions on the 
re-employment provisions introduced to the Workers' Compensation Act in 
1989 by Bill 162. Tribunal decisions have had to address a number of 
procedural and legal issues arising from the new provisions and the re-employ- 
ment procedures developed by the Board. 

The decisions have identified the difficulties in handling re-employment claims 
expeditiously, which is generally necessary for early rehabilitation, and the need 
for the Board to obtain sufficient information to decide the worker's level of 
fitness. Decision No. 968/90 (1 991), 17 WCAT.R. 334, recognized that the 
Board will need to make determinations quickly and that the workers needs 
or abilities may not be fully known or may change over time. This decision 
indicated that the Board could act on the information available to it at the 
time, and could make further determinations and give new notices to the 
employer as the situation changed. Decision No. 968/90 also considered the 
employer's duty to accommodate the workplace when the worker could 
perform the essential duties of his pre-injury job. 

Decision No. 372/91 (1991), 19 WCAT.R. 317, appeared to approach the 
requirement of notice more strictly and identified a number of factors which 
should be addressed by the Board before sending a notice of fitness to the 
employer. While Decision No. 372/91 found that an employer must comply 
awith a notice of fitness and appeal any disagreements, the decision also held 
that an employers obligation to re-employ did not arise until it received a valid 
notice of fitness. 

After Decision No. 372/91 'was released, the Board provided submissions to the 
Tribunal on its interpretation of the re-employment provisions, and the 
administrative impact of an interpretation which would require the Board to 
determine the workers level of fitness and issue a notice to the employer before 
the obligation to re-employ could arise. These submissions were referred to a 
number of Panels considering re-employment cases. Decision No. 605/91 
(1991), 21 WCAT.R 131, was the only decision to issue during 1991 which 
considered these submissions. 



Page 12 



Annual Report 1 991 



Decision No. 605/91 agreed with Decision No. 372191 that the wording of the 
Act required the Board to give notice to an employer before the obligation to 
re-employ could arise. Other Tribunal decisions on this point should issue 
during 1 992. 

Decision No. 605/91 is also interesting for its consideration of what must be 
proved to rebut the presumption contained in the re-employment provisions, 
and of the standard of proof that the rebuttal must meet. 

Occupational Stress 

Occupational stress remains an issue of interest to the public. As mentioned in 
the last Report, the Board is in the process of developing a policy on chronic 
occupational stress. Meanwhile, the Tribunal continues to adjudicate stress 
appeals on a case-by-case basis. 

Early Tribunal cases which suggested that aspecial two-step inquiry was necessary 
because of the evidentiary difficulties in stress cases have not been followed. It 
now appears to be accepted that the usual test applies: has it been established 
on a balance of probabilities that the workplace was a significant contributing 
factor to the disability? 

In deciding whether this test has been met, Tribunal panels carefully weigh 
employment stressors with personal stressors. A stress disability will not be 
compensated where the work problems are insignificant when compared to 
the workers personal problems. See Decision No. 312/90 (April 1 5, 1 991 ). It 
is not enough to say that the workplace contributed to the stress. There must 
be an identifiable injuring process which is associated with the workplace. 
Decision No. 520/90 (1 99 1 ), 1 9 W.C.A.TR. 1 47. 

As noted in the last Report, Decision No. 322/891 (WO), 18 W.CA.TR. 93 at 
p. 102, asked for submissions on whether personnel actions could be consid- 
ered compensable "accidents". Decision No. 322/89 (1991), 18 W.CA.T.R. 
93, issued during this period. The majority found that a demotion which was 
negotiated between the employer and the union was not a compensable 
"accident". However, there was a dissent which found that the worker had 
been disabled over a period of time by the demotion and was entitled to 
compensation. 

The Tribunal has granted entitlement in cases where a worker suffered an acute 
onset of stress. In Decision No. 952/89 (January 23, 1 991) the worker experi- 
enced an acute anxiety reaction following disciplinary action at work. In 
Decision No. 99/91 (1 991 ), 1 8 W.C.AT.R, 293, a police officer was entitled 
to compensation for a post-traumatic stress disorder which he suffered follow- 
ing a shooting incident. In Decision No. 1030/89 (1 991), 20 WC.AT.R. 46, 
another police officer was found to be entitled to benefits on an aggravation 
basis where he experienced chronic workplace stress and was also involved in 
several stressful criminal investigations. 



Page 13 



Annual Report 1991 



Occupational Disease 

Occupational disease cases involve workplace exposure to harmful processes or 
substances. These cases continued to raise some of the most challenging 
adjudicative issues. The Tribunals general approach remains the same. Dis- 
abilities are compensable if they are covered by the statutory definition of 
"industrial disease" and related provisions, or by the "disablement" branch of 
the definition of "accident". 

The Tribunal is often called on to assess complex epidemiological evidence. 
However, cases where there is little or no epidemiological evidence may be even 
more challenging. TheTribunal is required by statute to decide on the "real 
merits and justice" of a claim. Tribunal panels must weigh all of the available 
evidence, including the medical evidence and opinions relating to the particu- 
lar worker, the job conditions, any non-employment exposures, and any 
general studies or epidemiological evidence on similar conditions. See, for 
example, Decision No. 773/88 (1 991), 1 9 W.CAT.R. 39, (which dealt with 
pharyngeal cancer in a nickel worker), Decision No. 331/89 (March 26, 1 991 ) 
(where the worker had lung cancer and was exposed to a "veritable soup" of 
carcinogens) and Decision No. 645/91 (October 1, 1991) (which involved 
sarcoidosis). 

There have also been a few occupational disease cases where the worker had either 
developed a condition which was a precursor to an industrial disease or had 
become sensitized to particular agents due to workplace exposure, and had to 
be removed from exposure. See Decision No. 157/91 (1 991), 20 WCAT.R. 
228, and Decision No. 331/91 Qune 4, 1991). 

Tinnitus and hearing loss claims are generally treated as occupational diseases. 
Decision No. 872/89 (1 991), 21 WC.A.T1 10, found that a tinnitus condi- 
tion could be caused by industrial noise in the absence of a compensable level 
of hearing loss. Decision No. 181/89 (1 991), 1 9 WCAT.R. 93, analyzed the 
basis for assessing the effects of impact noise, continuous noise and combined 
impact and continuous noise. Decision No. 132/90(1 991 ), 1 7 WCAT.R. 99, 
confirmed the Boards policy of applying a presbycusis factor to hearing loss 
claims by older workers. The presbycusis factor reflected the existence of a 
separate, non-compensable injuring process in older workers. 

Chronic Pain and Fibromyalgia 

Appendix C to the Third Report reviewed the development of the Tribunal's and 
Board's treatment of chronic pain and fibromyalgia in some detail. The 1 990 
Annual Report summarized the WCB board of directors section 86n review 
of Decision Nos. 915, 915A, etc., which issued on June 1 , 1 990 (reproduced 
in 1 5 WCAT.R at p. 245). The section 86n review showed a large measure 
of agreement between the two institutions. The board of directors concluded 
there was no need to direct the Tribunal to reconsider Decision Nos. 915 and 
915A. However, a number of Tribunal decisions included in the section 86n 
review had awarded temporary benefits for chronic pain prior to March 27, 
1986, the date Decision No. 915A found should be the starting point for 
chronic pain benefits. At the close of the last reporting period, the board of 
directors was considering submissions on whether the Board should exercise 
its discretion to direct the Tribunal to reconsider these cases. On January 18, 
1 991 , the board of directors issued individual decisions in these cases. By 
majority vote, the board of directors directed the Tribunal to reconsider. An 
example of one of these section 86n decisions is found at 1 8 WCA.T.R 339. 



Page 14 



Annual Report 1991 



The Tribunal commenced processing these reconsiderations. However, the board 
of directors subsequently received a request to reconsider its section 86n 
direction. After consulting with the parties to the Tribunal proceedings, the 
Tribunal suspended its reconsideration procedures. 

The Tribunal ( "hair was formally advised on November 27, 1 991 , that the board 
of directors had considered the request to reconsider at its November 8, 1 991 , 
meeting and declined to reconsider. At the close of the reporting period, the 
Tribunal was in the process of contacting the parties and rescheduling pre- 
hearing conferences in these cases. 

Turning to the Tribunals chronic pain decisions issued during 1991, panels 
continue to apply the "whole person" approach to assessments. In some cases, 
Panels have "double checked" a non-organic chronic pain pension by compar- 
ing it to the likely pension award for an organic disability of the same nature. 
See Decision No. 23/89 (1 991), 1 8 W.CAT.R 61 . While the "whole person" 
approach accords with the Board s policy against stacking non-organic benefits 
on organic benefits, it has been noted that the no stacking policy is intended 
to prevent compensating a worker twice for the same disability. If there are two 
disabilities, both must be compensated. See Decision No. 409/91 (1991), 19 
W.CAT.R. 334. 

Panels have also examined a number of issues arising from the Board s new 
Psychotraumatic and Behavioural Disorders Rating Schedule which applies to 
chronic pain and fibromyalgia. See, for example, Decision No. 738/90 (1 991), 
18 W.CAT.R. 246. 

Decision No. 912/901 (1991), 17W.CA.TR. 310, discussed the difficulties in 
determining maximum medical rehabilitation in a chronic pain case, especially 
when the disability arose before 1986, when the condition was not well 
understood and rehabilitation services were not as available. 

Transfer of Costs Between Employers 

In cases involving negligence and more than one employer, the Act enables the 
Board to transfer all or part of the costs of an accident to a different class or 
group of employers where the Board is satisfied that the negligence of a 
Schedule 1 employer other than the injured worker's employer has contributed 
to the injury. 

The 1990 Report noted a change in the Tribunals treatment of cost transfers. 
EarlyTribunal cases found that a cost transfer was only available if there was 
"clear evidence" of negligence. The 1 991 cases confirm the 1 990 trend that the 
Act does not require such a high standard of negligence. Decision No. 1 1 1/91 
(April 17, 1991) found that the concept of negligence should be given the 
same interpretation as at common law. Decision No. 188/90 (July 3, 1991) 
found that in an occupiers liability case, the test for negligence should be based 
on the Occupiers' Liability Act, which was similar to the usual common law test 
for negligence. Decision No. 301/91 (June 6, 1991) proposed a somewhat 
different test based on astandard of reasonable care "under the circumstances 
of the cost transfer". The Panel considered (1 ) what was a reasonable standard 
of care in the circumstances of the work-related disability, (2) whether the 
standard was breached by another Schedule 1 employer or its workers and (3) 
if so, did the breach make a significant contribution to the accident. 



Page 15 



Annual Report 1991 



Classification of Employers 

A number of decisions issued in 1991 dealt with employer classifications. The 
exemption for organizations not operated as a business or trade or for profit or 
gain was considered in the context of a residential condominium corporation 
{Decision No. 991/88 (1991), 19 WC.A.T.R. 68), and a meals-on-wheels 
operation {Decision No. 352/91 (1991), 19 WC.A.T.R. 308). The Tribunal 
also considered the Boards policy on subcontractors {Decision No. 338/91 
(November 11, 1991)), the policy of classifying employers based on end 
product, when more than one product is produced and the end product is not 
named in the rate groups {Decision No. 927/90 (June 19, 1991)) and the 
exception to the general requirement that an employer should be assessed as a 
single unit {Decision No. 806/89 (1 991 ), 1 9 WC.AT.R. 1 1 6). 

Miscellaneous 

The AppealsTribunal is created as a tripartite appellate body with investigative 
powers. A number of decisions dealt with theTribunal's unique powers and 
role under the Workers Compensation Act. Decision No. 909/90 (1991), 20 
W.CAT.R 168, considered the parameters of the Tribunals investigative 
powers and its mandate to determine on the "real merits and justice". Decision 
No. 657/91 (1991), 20W.C.A.TR. 293, discussed the role of theTribunal's 
medical assessors who are appointed under the Act. Decision No. 764/91 
(1991), 21 W.CAT.R. 348, considered the precedential value of previous 
Tribunal decisions and when a Panel should defer to a general Tribunal 
position. Decision No. 1 36/90 (1 99 '1), 19 W.CAT.R. 134, and Decision No. 
81 6/90 (August 22, 1991), examined the effect of the Freedom of Information 
and Protection of Privacy Act, 1987, on confidentiality and access provisions 
in the Workers' Compensation Act. Decision No. 190/89 (December 2, 1991) 
and Decision No. 99/9 1A (1 991), 2 1 W.CAT.R79, considered whether the 
Tribunal had the power to award costs. 

Other interesting legal and medical issues to come before the Tribunal included 
the compensability of impotence {Decision No. 785/88R (1992), 21 
W.CAT.R 1), the standard of proof to be applied in determining whether a 
worker has committed suicide {Decision No. 32/91 (1991), 18 WC.A.TR. 
258) and the compensability of heart attacks (for example, Decision Nos. 
344/89 (1991), 20 W.CAT.R 26, 433/91 (October 31, 1991) and 191/91 
(August 20, 1991)). 



JUDICIAL REVIEW ACTIVITY 

In 1 991 , three applications for judicial review ofTribunal decisions were heard 
by the Divisional Court. 

The decisions subject to the applications were: 

1 ) Decision No. 799/87 dated September 3, 1 987, and heard 
March 5, 1991, 

2) Decision No. 298/88 (1 988), 9 WCAT.R. 281 , heard 
February 14, 1991, 

3) Decision No. 656/88 dated December 9, 1988, and heard 
November 8, 1991. 



Page 16 



Annual Report 1991 



All three applications for judicial review were dismissed. 

A motion for leave to appeal was brought to the Court of Appeal from the 
decision of the Divisional Court, on November 29, 1990, dismissing applica- 
tions for judicial review in the following seven decisions: Decision No. 850/87 
dated February 11, 1988, Decision No. 850/87R (1990), 14W.CAT.R. 1, 
dated March 23, 1 990, Decision No. 981/87datcd June 3, 1 988, Decision No. 
981/87Rdztcd March 23, 1 990, and Decision Nos. 695/88, 696/88 (1 989), 1 
WC.A.T.R. 308, and 697/88, all dated March 9, 1989. 

The application for leave was heard on June 24, 1 991 , and dismissed. 

An earlier motion for leave to appeal of Decision No. 525 dated March 1 9, 1 987, 
was dismissed by the Court of Appeal, on February 21 , 1 991 , for delay. 

A further motion for leave to appeal to the Court of Appeal has been filed with 
respect to the Divisional Court's decision on the application for judicial review 
of Decision No. 656/88. 

At the end of 1991 there were six applications for judicial review outstanding. 
These are applications for review of: 

Decision No. 801/88 dated November 23, 1988, 
Decision No. 91 7/88 dated August 11,1 989, 
Decision No. 977/89 (1 990), 1 3 W.C.A.T.R. 298, 
Decision No. 155/90 dated March 12, 1990, 
Decision No. 497/90 dated September 27, 1 990, and 
Decision No. 32/91 (1 991), 1 8 W.CAT.R. 288. 

Other Matters 

On May 7, 1 991 , the Tribunal attended at an application to the Ontario Court 
(General Division) to restrain the Tribunal from proceeding with hearing a 
worker's claim for work related stress. The worker had entered into an 
agreement with her employer waiving rights. Counsel for the worker brought 
a motion to quash the application based on sections 16, 17, 75 and 86g(l) of 
the Act. The Tribunal, defending its jurisdiction, supported the motion to 
quash. 

The Court held that these sections provide the Workers' Compensation Appeals 
Tribunal with the exclusive jurisdiction to deal with all problems raised in the 
notice of application, and quashed the application. 



Page 17 



Annual Report 1991 



THE APPEAL PROCESS 



Receipt of Appeal 
& Intake Processing 



Pre-Hearing Processing 



Scheduling of Hearings 



Hearings 



l 



Post-Hearing Processing 



f 



Decision Writing 



Decision Release 




Special and Administrative Services 

H Systems Department 

^1 Finance and Administration 

•£i French Translation Services 

I Information Department 
(Library and Publications) 



Human Resources 

Reproduction and Mail Room 

Secretarial Services 

Statistical Service 

(Data Processing and Reports) 

Word Processing Centre 



Page 18 



Annual Report 1991 



THE TRIBUNAL REPORT 



THE APPEAL PROCESS 

The appeal process used by the Tribu nal has been represented graphically as a flow 
chart on the facing page. The process from receipt to final disposition of a 
typical appeal is as follows. 

Appeals are logged in by Records and forwarded to Intake, the department 
responsible for obtaining the workers file from the WCB and other necessary 
preliminary information. Once Intake's work is complete, it forwards the file 
to the Tribunal Counsel Office where the case is prepared for hearing. The 
main vehicle in this regard is the Case Description ("CD") which summarizes 
the salient facts, identifies the probable issues, and provides an indexed copy 
of all relevant documents from the WCB file. Upon completion, the CD is 
forwarded to the WCB and to the worker and employer, or their repre- 
sentatives, who are free to request deletions, additions or amendments. 

(The workers consent to the employer having access to documents in his or her 
file is sought at the initial stages of an appeal. If the consent is withheld, the 
processing of the appeal is put on hold while the issue of the employers right 
of access to relevant documents is decided by a Tribunal Panel. This is done in 
a special panel process.) 

At the same time, the CD is sent to the Tribunals Medical Liaison Office (MLO), 
to the Tribunal counsel assigned to assist with the case, and to the Scheduling 
Department. In the Scheduling Department, discussions concerning a hear- 
ing date are initiated immediately with the parties' representatives with a view 
to agreeing on a hearing date. The MLO identifies medical issues in the case 
and checks the medical evidence available in the file and consults where 
necessary with the Tribunal's Medical Counsellors as to significant omissions 
or deficiencies. Problems with the medical evidence are addressed by further 
investigating, perhaps through seeking further information or clarification 
from doctors whose reports are to be found in the WCB file or by seeking 
additional advice or opinions from doctors on the Tribunal's roster of Order- 
in-Council appointed medical assessors. If this activity cannot be completed 
before the hearing date, the problem is brought to the attention of the Hearing 
Panel at the hearing and the Panel may direct post-hearing completion of such 
further investigation. 

A hearing panel may, in any event, in the cou rse of the hearing and decision-mak- 
ing process, identify for itself a need for further medical or other investigation. 
Where that happens, it will instruct the Tribunal Counsel Office to coordinate 
and direct that investigation, post-hearing. 

The results of any Tribunal investigations, whether post-hearing or pre-hearing, 
are shared with the parties, who are entitled to make submissions in respect of 
them or, indeed, to respond with further evidence of their own. 



Page 19 



Annual Report 1991 



It is usual for panels to rely on written medical reports as sufficient indication of 
a doctor's evidence. However, where a report requires clarification or explana- 
tion, the report's author may be required to testily and questioned about the 
report. 

The Tribunal counsel investigates the law relating to an appeal and, where 
necessary, provides the Hearing Panel, and the parties, with copies of especially 
significant previous decisions of the Tribunal or of other authorities. He or she 
also assists with any need for further clarification of the issues likely to be 
addressed by a hearing panel and provides information to both parties' 
representatives concerning the probable issue-agenda and the Tribunal's hear- 
ing process. 

The CD, any additions to the CD requested by the parties, and any product of 
the pre-hearing work of the MIX) or the Tribunal counsel is delivered to each 
member of the tripartite hearing panel a few days before the hearing date and 
is read by them in advance of the hearing. 

At the hearing, any participating party is entitled to submit such further docu- 
mentary evidence as he or she considers necessary and to have any witnesses 
testify. This is subject to the obligation to give the other party and the Tribunal 
three weeks advance notice of such evidence. Witnesses may be cross-ques- 
tioned by the other party and by any member of the hearing panel. It is usual 
for at least the worker to testify. 

Once all the evidence has been presented, submissions on the evidence and law 
are made and the hearing is then considered complete. The hearing is, 
however, always subject to being reconvened on the initiative of the hearing 
panel if the panel concludes that additional evidence or further submissions 
are needed. 

After the hearing, the decision is made through a process involving panel 
caucuses, drafting reasons, reviewing draft reasons, re-drafting, further cau- 
cuses, etc. The drafting of reasons is the responsibility of the panel chair but all 
three members of the hearing panel participate fully in the decision-making 
process. Frequently, draft decisions will be submitted to the Tribunals draft 
review process prior to the decision being finalized. 

After the decision is released, the Tribunal may receive a request for reconsidera- 
tion, or be asked to respond to a complaint to the Ombudsman's Office, or 
the decision may become the subject of judicial review. 



Page 20 



Annual Report 1991 



VICE-CHAIRS, MEMBERS AND STAFF 

Lists of the Vice-Chairs and Members, senior staff and Medical Counsellors 
active during the reporting period, as well as a record of roster changes and 
resumes for newly appointed Vice-Chairs and Members can be found in 
Appendix A. 

TRIBUNAL COUNSEL OFFICE 

The Tribunal Counsel Office (TCO) consists of six groups, each reporting to the 
Ceneral Counsel. 

Intake 

The Intake Department handles ail incoming appeal applications and the public's 
questions about appeals and about the appeal process. The Intake Department 
has been primarily responsible for all the Tribunal's "special section" cases. The 
special section cases include section 77 access to worker File cases, section 21 
employer requests for medical examination, and section 1 5 cases on the right 
to maintain civil actions for damages. 

However the Intake Department is not responsible for re-employment issues 
under section 54b of the Act. These special section cases are handled by asenior 
TCO lawyer. 

The legal aspects of Intake work are carried out under the review of TCO lawyers. 
Special section cases constitute approximately 35 per cent of the Tribunals 
incoming cases and often involve complex legal issues. 

The Intake Department is headed by the Intake Manager. 

Case Description Writers 

Case Description Writers are responsible for preparing all cases for hearing 
according to a standardized model and within certain time limits. 

The Case Description group works under the supervision of a senior TCO 
lawyer. 

Noteworthy in 1 991 was the fact that the Case Description group eliminated an 
earlier backlog and was able to keep up with the incoming volume of work 
without development of any fii rther backlog. As a result, case descriptions were 
sent to parties in 1 991 within a month or six weeks of the file being ready for 
preparation of the case description, unless specific difficulties were encoun- 
tered with the appeal or with the receipt of file material from the Board, 

Pre-hearing Legal Workers 

When the case description is complete, the case is scheduled and transferred 
either to a legal worker or to a lawyer. Approximately 90 per cent of cases are 
handled by legal workers. These legal workers deal with matters that arise 
pre-hearing and may provide assistance to the parties if there are questions 
respecting the preparation of the cases. 



Page 21 



Annual Report 1991 



This year was the first full year of operation for TCO's expanded group of 
p re-hearing legal workers. The group now includes three senior legal workers 
and two pre-hearing legal workers, and is headed by a manager of the 
pre-hearing group. The group has increasingly taken on more complex func- 
tions. 

Lawyers 

Lawyers handle a small number of the most complex cases, involving novel legal 
issues or issues which have been identified as involving asignificantTribunal 
interest. 

At the request of the hearing panel, lawyers may attend hearings to cross-question 
witnesses or may provide the Panel with evidence, usually in the form of expert 
evidence from one of the Tribunals medical assessors. The purpose of these 
functions is to ensure that there is an adequate record before the Panel. Lawyers 
may also make submissions on matters of law either by way of written 
submissions or orally at the hearing, at the request of the hearing panel. 
However, TCO lawyers do not make submissions on issues of fact and all 
submissions are presented in as neutral a manner as passible. 

Lawyers also provide assistance to legal workers and supervise many of the 
functions carried out by legal workers. In 1 991 there were five lawyers in TCO, 
exclusive of the General Counsel, as well as one articling student. Major issues 
which required lawyer input included the questions of legislative interpreta- 
tion in re-employment appeals and issues related to stress claims. 

TCO lawyers also handle applications for judicial review. 

Medical Liaison Office 

The Medical Liaison Office co-ordinates and oversees all of the Tribunals 
interactions with the medical community and facilitates the Tribunal's use and 
understanding of medical evidence. 

Pre-hearing 

In 1991, 41.7 per cent of the total number of pension and entitlement case 
descriptions were referred to the Tribunal's Senior Medical Counsellors for 
assessment of the nature of the medical issues and the possible need for further 
medical evidence. 

Additional medical information was put before the Panel in 80 per cent of these 
cases: in 30 per cent, general information was provided; in another 30 per 
cent, gaps were filled or clarification obtained; and in 20 per cent, problems 
with the sufficiency or quality of evidence were identified. In the latter 20 per 
cent of cases, either more evidence was provided via Medical Assessor reports, 
or the identification of potential problems was communicated to the Panels 
for their consideration. 

Post-hearing 

Of the total 192 post-hearing medical evidence requests by hearing panels 
received in TCO this year, 59.4 per cent of these were referred to the MLO 
to obtain independent expert evidence. 



Page 22 



Annual Report 1991 



Medical Counsellors 

Counsellors continue to review case materials referred by the MLO in order to 
determine if: 

1 ) there are gaps in the medical reporting; 

2) clarification from treating physicians is required; 

3) general medical information would assist in understanding the medical 
condition in the appeal; 

4) additional medical information from an appropriate specialist(s) may be 
of assistance to the Panel. 

Counsellors continue to monitor the sufficiency and quality of the Tribunals 
Medical Assessor roster and recruit as needed qualified experts for theTribu- 
nals section 86h roster of medical assessors. 

Medical Counsellors conduct annual medical audits of decisions to determine 
whether from a medical professional's perspective, there are problems with the 
manner in which medical fact or theory is treated or recorded in Tribunal 
decisions. Generic issues are identified which permit the Tribunal to evaluate 
its processes and practices as they relate to medical issues and medical evidence 
and to address any problems through medical education initiatives, several of 
which occurred this year. 

No changes to the Medical Counsellor roster occurred this year. 

Section 86h Medical Assessors 

Assessors are highly acknowledged leaders in their specialty and may be asked to 
assist the Tribunal in a number of ways. Usually, they will be asked to review 
the appeal documentation, perhaps examine the worker and prepare a report 
in response to specific questions. Frequently, Assessors are asked to provide 
general information about the nature of a particular medical condition and the 
known medical theories concerning diagnosis, causation, pathology, treat- 
ment, prognosis and terminology. Assessors may be asked to recommend 
references, texts and journals or prepare medical treatises to assist the Tribunals 
lay panels. 

Generally, Assessors provide evidence byway of written reports. However, where 
a Panel determines it to be necessaiy, Medical Assessors may be asked to testify 
at the hearing as the Tribunals expert witness. 

All substantive medical reports and literature reviews conducted by Medical 
Assessors continue to be placed in the Tribunal Library for research purposes. 

Medical Assessors are appointed for three year terms by the Provincial Cabinet. 
In 1 991 , a large percentage of Assessors required reappointment. Of the total, 
21 were not re- appointed either because they retired from practice, moved out 
of the province or declined reappointment. Counsellors recruited and filled 
any vacancies that would have left the Tribunals resources compromised. 



Page 23 



Annual Report 1991 



Post-hearing Legal Workers 

When the panel identifies that additional information is required after hearing, 
a request is made to the post-hearing legal workers, who coordinate this 
continuing investigation. The post-hearing legal workers report directly to 
General Counsel through a group leader. 



INFORMATION DEPARTMENT 

Publications 

The Publications Department continues to refine and add to the Tribunal's roster 
of publications. 

Practice Directions 

The Tribunal reviewed its Practice Directions in 1991 and some important 
amendments resulted. The revised Practice Directions were made available to 
the public in a loose-leaf format. This format will make future amendments, 
which may apply only to individual practice directions, easier to distribute. 

Cases Considered 

Summaries ofTribunal decisions include a list of other decisions considered in 
the summarized decision. These other decisions may be WCAT decisions, 
court decisions or decisions of other administrative tribunals. In 1991, we 
began adding a reference indicating the way that these other decisions were 
treated in the summarized decision (for example, whether applied, distin- 
guished or merely referred to). 

Decision Digest Service (DDS) 

Additions were made to the index material found in the Cumulative Binder of 
the DDS. They relate to decisions released before rhe DDS began. It is now 
possible to search all of the Tribunal's decisions by keyword or by section of the 
Act, using only the Cumulative Binder and the latest volume binder of the 
DDS. 

The Annotated Statute (December 1985 — December 1989) consolidates all the 
prior volumes of the Annotated Statute mx.o one document. It was edited to 
match the format and the selection criteria used in the more current releases 
of the Annotated Statute. 

The Keyword Index, Volume 1 covers decisions released from December 1985 to 
March 22, 1 988, when a different keywording system was in place. 

When a new keyword term is used for the first time, it is added to the Keyword 
Cuide Supplement. This alerts users to search the new terms also. The Keyword 
Guide Supplement is now a regular feature of the DDS and is updated every 
three months. 



Page 24 



Annual Report 1991 



W.C.A.T. Reporter 

A consolidated keyword index appears in the Reporter at five-volume intervals. 
Until 1 991 , the keyword index for each volume issued after the last consoli- 
dated index had to be searched separately. The Reporter's Interim Cumulative 
Keyword Index now allows the intervening volumes to be searched in one 
document. 

Concordance 

The coming into force of the R.S.O. 1 990 version of the Workers' Compensation 
Act resulted in a virtually complete renumbering of the R.S.O. 1980 version. 
To ease the transition to use of the new numbering, we prepared a Concordance 
that allows users to find the new section number by looking up the old 
number. 

Leaflet 

TheTribunal has relied on the publication, A Straightforward Guide to the Workers' 
Compensation Appeals Tribunal, to make itself known to the public. This 
relatively long pamphlet explains theTribunal's role and procedures in some 
detail. It is also fairly expensive to produce. We have concluded that a shorter 
and simpler leaflet would provide a better introduction of the Tribunal to the 
public It would also be more cost-effective. We therefore plan to publish such 
a leaflet. The Straightforward GuidewlW continue to be provided to those who 
require its greater detail. 

Depository Libraries 

We investigated the operation of the Ontario Government Depository Libraries 
programme and decided to participate in 1 992. We will supply the Reporter 
and DDS to full depository libraries in the programme, free of charge. As these 
libraries are spread throughout Ontario, free access to our most important 
research publications will become easier, especially for those who cannot take 
advantage of the Tribunal's Library. 

Library Highlights 

Current Awareness 

Current Awareness continues to be a very popular service. It provides OICs and 
staff with a comprehensive package of information regarding additions to the 
library's holdings. Sixty-seven people now see it on a weekly basis. 

During 1991 two new chapters were added. "From the Legislature" includes 
information regarding new bills, and transcripts of Committee hearings; 
"Computers" contains the contents pages from all the computer related 
periodicals we receive. 

Automation 

The possibility of creating a database for the book collection was explored. Such 
a file would provide automated access to the collection and make the library 
less dependent on external resources by allowing for in-house creation and 
editing of records and production of the book catalogue. 



Page 25 



Annual Report 1991 



Subject authority lists were transferred from Wordperfect files into Cardbox-Plus 
databases. This allows for quicker and more accurate assignment of subject 
headings to materials being indexed in the Library File and makes it simpler 
to revise and print copies of the authority lists. 

Acquisitions 

During the year the following items were added to the library: 280 books and 
government documents, 1 89 entries added to the file of judicial cases (Juris), 
1 ,835 periodical articles and other documents indexed in the Library file. 

Interlibrary Loan 

A total of 724 items were obtained on interlibrary loan. 

Serials File 

The computer file used for recording serials was improved to allow for billing 
and claims information to be recorded in a standardized format. 

Sixteen new titles were added to our holdings to bring the total number received 
to 225. 

Our holdings were reported to two union lists, Ontario Government Libraries 
and Toronto Association of Law Librarians. 

Reference 

A second Rill time librarian commenced duties in early 1991. This enabled us to 
improve our reference service by having a staff member at the reference desk 
at all times. We continue to provide service to a wide range of external users. 
For example, students studying workers' compensation law, from George 
Brown ( College in Toronto, were regular users of the libraries services. 



SYSTEMS DEPARTMENT 

To provide adequate and efficient computer resources, Systems undertook the 
replacement of the Tribunal's over-burdened computer system with new 
equipment capable of meeting the organization's needs for the next four years. 
To accomplish this, the department obtained approval of a business case 
submitted to Management Board of Cabinet, wrote and released a public 
tender for the new equipment and, after awarding a contract, oversaw its 
installation and configuration. 

Before its arrival, necessary upgrading of the Tribunals current software took 
place. This involved the testing and evaluation of software. Upgrading had not 
been done in some time due to customization of the old software. All 
unnecessary customization was removed, making it easier to upgrade the 
software which would eventually run on the new computer system. The result 
is that future modifications will be done in a more timely fashion, giving users 
access to the performance enhancements of newer software releases. 

When installed and configured, Systems transferred over the organization's 
applications from the old equipment to the new in December, and users began 
using the new computer for the first time. Acceptance testing began in the new 
year. 



Page 26 



Annual Report 1991 



To take advantage of better and less expensive computer applications, the 
interconnection of Personal Computers to theTribunal Local Area Network 
was carried out. This development allows for the tailoring of software applica- 
tions to the individual needs of users. The first application of this kind is 
scheduled for setup on the network early in the new year. The Case Tracking 
Application, as it is known, is expected to be the foundation for additional 
efforts to improve the efficiency of case work at the Tribunal. 

Some other accomplishments during the year include: better off-site computer 
support of Tribunal panel members in the form of portable computer systems, 
more secure access to the organizations main system from ofF-site locations 
and, with additional Personal Computers accessing the main computer sys- 
tem, other terminals have been freed for internal use reducing the inefficient 
sharing of terminals. 

The future for 1992 includes: completing the evaluation of the new main 
computer system, implementing Phase I of the Case Tracking System, provid- 
ing additional secure access to the main computer from remote locations, 
providing an automated help desk system, more efficient access to the com- 
puter for handicapped employees and computer based applications to aid in 
the daily working of the Tribunal. 

Case Tracking 

From 1 987 to 1 988, an Oracle based application was developed for the Tribunal 
to manage its caseload. For a variety of reasons, theTribunal was not able to 
implement this system and decided to defer its case management project so 
that more immediate information technology needs could be met. 

A new project to implement a system to keep track of cases was launched in April 
of this year. The consulting firm of Gellman and Hayward worked with 
Tribunal staff to develop a database, using dBase IV, that would automate the 
process of tracking cases. The decision to use dBase was based on available 
in-house expertise as a case tracking application had already been developed 
by the Statistical Research and Analysis Department. The new case tracking 
application was developed with this database as a model in order to provide 
continuity. All cases tracked on the old system will be added to the new system. 

The new database will provide access to up-to-date information about all cases in 
the Tribunal system, i.e., it will provide information as to the current physical 
location and the current status of a file, which department and which staff 
member is working on the appeal, and which stage in the appeal process a case 
has reached. The database will therefore provide simple access to the chronol- 
ogy of a case and its current status, helping Tribunal staff to respond quickly 
to telephone inquiries. In addition, it will be possible to determine informa- 
tion about cases in general. For example, how many cases are at a given stage 
of the process at a given time. Inquiry screens for each department will provide 
information that should help departments assess current workload. 

The Statistical Research and Analysis Department will use information in the 
database to develop reports that are based on an analysis of the data about 
individual cases. In other words, they will generate information about the 
Tribunal's caseload. (This has been done by the Department in the past, but 
with more limited information.) All of the information about cases that have 
already been decided will be converted to the new database. 



Page 27 



Annual Report 1991 



YEAR END STATISTICAL SUMMARY 

Introduction 

This statistical report represents a detailed summary of the 1991 production 
figures. In general, the 1991 pattern was similar to the pattern for 1990, 
however in 1 991 there were more files received (32 more than in 1 990) and 
more files completed (1 67 more than in 1 990). In addition, there was a more 
pronounced decrease in the overall case inventory in 1991 compared with 
1990. (Figure 1) 



Figure 1 — INCOMING FILES AND FILES COMPLETED 



3,000 



2,500 - 




1985 1986 

RECEIVED 



1987 



CLOSED 
(TOTAL) 



1988 



1989 



1990 



1991 



CLOSED CLOSED INVENTORY 
(After Hearing) (Before Hearing) 



This statistical summary begins with an accounting of the numbers and types of 
cases received in the year in relation to other years. The next section focuses on 
closed cases, and gives details of how and when cases were closed in terms of 
the appeals process. There is then a further analysis which discusses typical 
stage completion times for 1991 cases. 

The two key production measures, hearings and decisions, are then examined in 
detail. In this section, the hearings representation profiles for workers and for 
employers are presented and discussed in terms of their regional breakdowns. 
This section also presents the total number of hearings conducted in 1 991 and 
the total number of decisions released in 1 991 . 

The final section provides a breakdown of the 1 991 year-end inventory of 
outstanding cases by appeals processing stage. 



Page 28 



Annual Report 1991 



Cases Received 

The general pattern of incoming cases for 1991 was quite similar to the 1990 
pattern. In 1 991 , 1 ,552 cases were received. (Figure 2) This represents a small 
increase of 32 cases (2.1 per cent) over the 1990 incoming cases volume. 
Fifty-five per cent of the 1991 cases arose in response to WCB rulings 
regarding entitlement to WCB services, pensions, employer obligations and 
assessment rates. Thirty-five per cent of cases related to "special sections" of the 
Workers' Compensation Act. Ten per cent of the cases were "post-decision 
issues", including requests to reconsider previous Tribunal decisions, Om- 
budsman investigations and judicial reviews. (Figure 3) 



Figure 2 — ANNUAL BREAKDOWN OF INCOMING CASES 





1988 


1989 


1990 


1991 


Total (All Years)* 


Type 


Number 


(%) 


Number (%) 


Numbei 


• (%) 


Number 


(%) 


Number 


(%) 


Section 86o 


78 


5.0 


46 


2.8 


44 


2.9 


30 


1.9 


675 


6.0 


Section 15 


89 


5.7 


89 


5.5 


120 


7.9 


127 


8.2 


669 


6.0 


Section 21 


82 


5.2 


66 


4.1 


52 


3.4 


65 


4.2 


405 


3.6 


Section 77 


257 


16.5 


295 


18.2 


279 


18.4 


318 


20.5 


1,623 


14.5 


Section 77 (Objection) 


10 


0.6 


10 


0.6 


9 


0.6 





0.0 


67 


0.6 


Special Section 


516 


33.0 


506 


31.3 


504 


33.2 


540 


34.8 


3,439 


30.8 


Pension 


45 


2.9 


40 


2.5 


21 


1.4 


2 


0.1 


570 


5.1 


Commutation 


38 


2.4 


35 


2.2 


16 


1.1 


6 


0.4 


123 


1.1 


Employer Assessment 


33 


2.1 


26 


1.6 


26 


1.7 


5 


0.3 


147 


1.3 


Entitlement 


709 


45.4 


689 


42.6 


748 


49.2 


786 


50.6 


5,539 


49.6 


Reinstatement 


n/a 


0.0 


n/a 


0.0 


1 


0.1 


31 


2.0 


32 


0.3 


Vocational Rehabilitaton* 


n/a 


0.0 


n/a 


0.0 





0.0 


1 


0.1 


1 


0.0 


Entitlement & Other 


825 


52.8 


790 


48.8 


812 


53.4 


831 


53.5 


6,412 


57.5 


Judicial Review 


4 


0.3 


2 


0.1 


10 


0.7 


4 


0.3 


29 


0.3 


Ombudsman's Request 


84 


5.4 


108 


6.7 


82 


5.4 


63 


4.1 


408 


3.7 


Reconsideration 


75 


4.8 


102 


6.3 


81 


5.3 


84 


5.4 


417 


3.7 


Clarification 


2 


0.1 


1 


0.1 





0.0 





0.0 


4 


0.0 


Post-decision 


165 


10.6 


213 


13.2 


173 


11.4 


151 


9.7 


858 


7.7 


No-jurisdiction 


56 


3.6 


110 


6.8 


31 


2.0 


30 


1.9 


449 


4.0 


TOTAL INCOMING 


1,562 




1,619 




1,520 




1,552 




11,158 





t Total (All Years) represents all cases, including those received prior to January 1, 1988. 
* This category refers to appeals related to the increased vocational rehabilitation requirements following Bill 162. 
Appeals which may have related to other vocational rehabilitiation issues are captured in the "entitlement" category. 



Page 29 



Annual Report 1991 



Within these broad categories, some minor trends can be noted. Applications 
under section 860 of the Workers Compensation Act (leave to appeal) continued 
to decrease in proportional terms. They represented 1 .9 per cent of the 1 991 
incoming caseload compared with 6 per cent of the overall incoming caseload 
for all years combined. Conversely, appeals under section 77 (access to records) 
and applications under section 1 5 (right to sue) continued to increase margin- 
ally in proportional terms. Section 77 appeals represented 21 per cent of cases 
in 1991 compared with 15 per cent of the incoming caseload for all years 
combined, and section 15 applications represented 8 per cent of the 1991 
incoming caseload compared with 6 per cent for all years combined. 



Figure 3— INCOMING CASELOAD BY TYPE 



ENTITLEMENT 

55.5% 




POST-DECISION ISSUES 

9.7% 



34.8% 

SPECIAL SECTION 



Post-decision issues include reconsideration applications, 

Ombudsman's inquiries and judicial review cases. 

Entitlement includes other related issues and no-jurisdiction cases. 



Another difference was noted in terms of pension appeals which declined to 0.1 
per cent of the 1991 incoming caseload against an overall proportion of 5 per 
cent for all years combined. As of the date of this report, the reason for this 
decline has not been isolated. 

Ombudsman investigations and judicial reviews decreased in comparison with 
their 1990 proportions and requests for reconsideration maintained roughly 
the same proportion. 

Finally, although they still represented a small proportion of the incoming 
caseload for 1991, 31 reinstatement cases were received. These were new 
appeal types for the Tribunal, since the Workers' Compensation Act was only 
recently amended to provide this right. 



Page 30 



Annual Report 1991 



Figure 4 — ANNUAL BREAKDOWN OF CASES CLOSED 





1988 


1989 


1990 


1991 


Total (All 


Years) 1 


Type 


Number 


(%) 


Number (%) 


Numbei 


• (%) 


Number 


(%) 


Number 


(%) 


Section 860 


125 


6.2 


121 


6.0 


56 


3.5 


53 


3.0 


649 


6.6 


Section 15 


99 


4.9 


79 


3.9 


118 


7.4 


107 


6.1 


573 


5.8 


Section 21 


87 


4.3 


73 


3.6 


46 


2.9 


66 


3.8 


389 


4.0 


Section 77 


288 


14.3 


230 


11.4 


298 


18.7 


305 


17.3 


1,510 


15.4 


Section 77 (Objection) 


15 


0.7 


7 


0.3 


9 


0.6 


5 


0.3 


61 


0.6 


Special Section 


614 


30.4 


510 


25.3 


527 


33.1 


536 


30.5 


3,182 


32.4 


Pension 


91 


4.5 


123 


6.1 


100 


6.3 


168 


9.6 


508 


5.2 


Commutation 


26 


1.3 


46 


2.3 


29 


1.8 


10 


0.6 


118 


1.2 


Employer Assessment 


26 


1.3 


24 


1.2 


28 


1.8 


22 


1.3 


126 


1.3- 


Entitlement 


1,096 


54.3 


1,015 


50.3 


684 


43.0 


788 


44.8 


4,690 


47.7 


Reinstatement 





0.0 





0.0 





0.0 


4 


0.2 


4 


0.0 


Entitlement & Other 


1,239 


61.4 


1,208 


59.9 


841 


52.9 


992 


56.4 


5,446 


55.4 


Judicial Review 


2 


0.1 


5 


0.2 


4 


0.3 


8 


0.5 


22 


0.2 


Ombudsman's Request 


53 


2.6 


82 


4.1 


102 


6.4 


110 


6.3 


365 


3.7 


Reconsideration 


52 


2.6 


103 


5.1 


82 


5.2 


74 


4.2 


355 


3.6 


Clarification 


3 


0.1 





0.0 


1 


0.1 





0.0 


4 


0.0 


Post-decision 


110 


5.4 


190 


9.4 


189 


11.9 


192 


10.9 


746 


7.6 


No-jurisdiction 


56 


2.8 


108 


5.4 


34 


2.1 


38 


2.2 


449 


4.6 


TOTAL CLOSED 


2,019 




2,016 




1,591 




1,758 




9,823 





Total (All Years) represents all cases, including those received prior to January 1, 1988. 



Cases Closed 



In 1 991 , the Tribunal closed 1 ,758 cases (Figure 4). This number represents 1 67 
more cases than were closed in 1 990, or an increase of 1 0.5 per cent. 

Entitlement and related cases (pensions, employer assessments, reinstatement 
obligations and benefits entitlements) represented 56 per cent of the cases 
closed in 1 991 , special sections accounted for 31 per cent, post-decisions for 
1 1 percent, and issues that were not within the Tribunals jurisdiction but were 
none the less pursued, accounted for the remaining 2 per cent. 

Within these broad categories, one can note the continued decline in the 
proportion of section 860 leave applications and the slight increase in the 
proportions of section 11 appeals and section 1 5 applications. The proportion 
of pension appeals closed in 1 991 increased in relation to other years. The latter 
increase results from theTribunal's efforts at providing specific follow-up for 
many of the older pension cases, i.e., those cases that had been returned to the 
WCB for re-evaluation following changes in the Boards pension policy. 



Page 31 



Annual Report 1991 



When examining the trends for closed cases, it is instructive to distinguish cases 
closed without decisions from cases closed by decision. When this distinction 
is made, one notes that the overall increase in closed cases in relation to the 

1 990 figure was driven by a marked increase in cases that did not require 
decisions. This trend can be seen by examining Figure 1 and noting that the 
trend line for cases closed without hearings rose quite sharply in 1 99 1 and that 
by contrast, the line for cases closed after decisions actually dropped slightly. 

The result was a net decrease in the proportion of cases closed by final decision. 
There was, however, a negligible decrease in the total number of decisions 
issued and that discrepancy is accounted for by an increase in the number of 
decisions required to close a case (an average of 1.12 in 1991 compared to 1.09 
in 1990). This increase in the number of decisions required to close a case 
reflects an upward trend since 1988. 

Case Completion Times 

It is a difficult task to assess the "turnaround" time for typical appeals. The 
difficulty arises from the very nature of the appeals process. Most appeals are 
dealt with expeditiously, however, there are always a significant number which 
require substantially more time, often for reasons outside of the Tribunals 
control. Because of these unusual cases, the resulting distribution of comple- 
tion time does not follow a "normal" distribution curve, and average 
completion times are therefore a misleading indication of the Tribunals typical 
performance. For this reason, in past years we have not reported overall 
portal-to-portal average completion times. This year, however, we have been 
experimenting with analyzing completion times in terms of percentile points. 
If the distribution curve of overall completion times is broken down into 
percentiles it is possible to say what percentage of cases has been completed 
within any chosen period of time. This type of analysis seems particulary useful 
and beginning with this report we plan to report completion times on this 
basis. 

Accordingly, we can now report that nearly 40 per cent of cases completed in 

1991 were completed within 6 months and 26 per cent between 6 and 12 
months. Thus 65 per cent were completed in less than 12 months. Thirteen 
per cent took between 12 and 18 months, and the remaining 22 per cent 
required more than 1 8 months. 

For purposes of comparison we have included comparable figures for 1989 and 
1 990. The 1 991 figures compare well against the 1 989 proportions, (in 1 989, 
33 per cent were completed within 6 months, 26 per cent between 6 and 12 
months, and 1 7 per cent between 1 2 and 1 8 months) and the values appear 
generally similar to the 1 990 proportions. (Refer to Figure 5) 

Readers may be interested in a breakdown of these overall completion figures by 
appeal type and this may be seen in Figure 5 covering the years 1 991, 1 990 
and 1 989. The steady improvement in the Table, especially in the number of 
entitlement cases completed within 6 months may be of particular interest. 



Page 32 



Annual Report 1991 



Figure 5 — DISTRIBUTIONS OF COMPLETION TIMES - FOR CASES FINISHED IN THE REPORTING YEAR 



Per Cent of Cases Completed 



Type 


Within 6 Months 


6 to 12 Months 


12 to 18 Months 


More Than 18 Months 




1989 


1990 


1991 


1989 


1990 


1991 


1989 


1990 


1991 


1989 


1990 1991 


Section 15 


35 


57 


54 


46 


25 


25 


17 


8 


14 


2 


10 7 


Sections 21 and 77 


82 


68 


78 


15 


28 


18 


2 


4 


3 


1 


1 


Entitlement-related 1 


12 


17 


26 


30 


40 


33 


25 


19 


19 


33 


24 22 


Post-decision Issues 


47 


41 


39 


34 


41 


32 


11 


13 


13 


8 


5 16 



All Cases* 



33 



35 



39 



26 



34 



26 



17 



13 



13 



24 



22 



1 The entitlement-related category refers to entitlement appeals, pension appeals, appeals under section 96o, reinstatement appeals, employer 
assessment appeals and pension commutation issues. The cases that were reviewed at the WCB for chronic pain are excluded. 

* The total category (All Cases) includes all cases finished in the year, i.e., finished either by decision or by non-hearing disposition. Cases 
reviewed for chronic pain are included in this total category. 



In order to present a more detailed picture of the typical completion time we have 
identified "stages" in the appeals process, and report "median", or fiftieth 
percentile figures for each stage as reflecting the "typical" time cases spend in 
each stage. The median represents the middle-ranked value of a distribution, 
or the point at which half of the cases fall above and half fall below. Although 
it is not as commonly used as the arithmetic mean (or average), the median 
has the advantage of providing a better summary of the typical value of the 
distribution when the distribution is not normal. For this reason, we have now 
adopted the median as our method of depicting the typical stage processing 
times. 

Figure 6 presents a summary of this analysis, giving the median stage times and 
their totals for 1989, 1990 and 1991 according to the following stage 
definitions: 

Intake Work - The time between receiving the claim file from the 
Workers' Compensation Board and acquiring all necessary 
documentation and approval from the appellant and other parties. 

Assignment to a Tribunal Counsel Officer -The time between the 
completion of intake work and the start of the case description by a 
Tribunal Counsel Officer. 



Case Description Preparation 
description. 



The time required to write the case 



Page 33 



Annual Report 1991 



Figure 6 — TYPICAL COMPLETION TIMES - BY stage 



Appeal Processing Stage 


1989 Median 1 


1990 Median 1 


1991 Medial 




Days 


Days 


Days 


1. Intake Work 


13 


8 


7 


2. Assignment to TCO 


28 


21 


11 


3. Case Description Preparation 22 


16 


17 


4. Preparation for Scheduling 


11 


20 


14 


5. Scheduling 


22 


29 


37 


6. Awaiting Hearing 


63 


60 


59 


7. Post-hearing and Decision 


63 


58 


63 



TOTAL 



222 



212 



208 



See explanation of median measure in the text at page 33. 



Preparation for Scheduling - The time between completing the case 
description and starting the case in scheduling. This involves processing 
the final draft of the case description, photocopying it (this is a 
significant undertaking), and distributing it to the necessary parties. 
This interval also includes the time which may have been required if 
there was a need to postpone the scheduling effort in order to review 
the case description more extensively in the Medical Liaison Office. 

Scheduling — The time between assigning a case to a hearing 
coordinator and achieving the last scheduled hearing date. (In the event 
that a scheduling effort was cancelled one or more times, this category 
captured all the time until the last successful scheduling date was 
achieved.) 

Awaiting Hearing - The time between the last scheduling effort and 
the hearing. 

Post-Hearing and Decision Process — The time between the last hearing 
and the decision release. (Cases were included in this category if 
post-hearing TCO follow-up was required after the last hearing, 
provided the case did not also require re-scheduling or re-hearing. In 
the event that re-scheduling or re-hearing was required, the 
post-hearing time was then captured in categories 5 and 6.) 



Page 34 



Annual Report 1991 



Examining the median data for cases leaving the various stages in 1991 , we note 
that from the time the claim file arrived from the WCB, cases typically spent 
7 days (the reference throughout is to calendar days) in the intake stage where 
the necessary forms and approvals were gathered and consolidated. Cases then 
spent 11 days in a review stage leading to their assignment to Tribunal Counsel 
Officers. Case descriptions were then completed, typically within the next 17 
days. The next 14 days were spent printing, photocopying and distributing 
these case descriptions, and if necessary, reviewing them in the Medical Liaison 
Office. It then typically required 37 days to achieve the final scheduling date 
and 59 days waiting for the hearing. Decisions were typically completed 63 
days after the last hearing. (This 63 days included decision writing and any 
additional TCO post-hearing activity, provided no other hearing was re- 
quired.) 

For appeals that experienced the typical time in each stage the overall turnaround 
time would have been 208 days, or 6.9 months, of which 2 months would 
have been spent waiting for the agreed-upon hearing date. Comparing this 
total for 1 991 with the total for the previous years, we note improvements of 
2 per cent and 6 per cent against the 1 990 and 1 989 totals, respectively. (In 
1990, the typical stage ages summed to 21 2 days, or 7.1 months, and in 1989, 
the sum was 222 days, or 7.4 months.) 

Hearings and Decisions 

Hearings 

In 1991, 1,085 cases went to hearing (or were assigned to Tribunal panels for 
deliberation). Some of these cases were heard (or assigned) more than once, 
resulting in a total of 1 ,214 hearings. In order to achieve the 1 ,214 hearings, 
1 ,375 scheduling dates had to be arranged. (On occasion, hearings have to be 
rescheduled due to illnesses or other unavoidable conflicts.) 

The 1 ,214 hearings included 1 ,014 (83 per cent) formal oral hearings, 1 32 (1 1 
per cent) reviews of written submissions, and 68 (6 per cent) panel delibera- 
tions regarding requests to reconsider previous Tribunal decisions. 

When formal hearings are conducted, they always involve a tripartite Tribunal 
panel (with a Vice-Chair and a Member Representative of employers and a 
Member Representative of workers) and parties are usually also accompanied 
by representatives. 

Representation at Hearings 

In approximately 38 per cent of cases heard formally in 1 991 , employers did not 
participate. When they did appear, their representation broke down as follows: 
a lawyer 25 per cent of the time, company personnel 14 per cent, a consultant 
1 1 per cent, the Office of the Employer Adviser 6 per cent and "other" and 
"unknown" types 6 per cent. 

The Office of the Worker Adviser was the single most common type of worker 
representative, accounting for 28 per cent of hearings. Lawyers or legal 
aid/assistants accounted for 24 per cent, and unions 1 5 per cent. Consultants 
accounted for 6 per cent of hearings, "odier" types 5 per cent, and "unknown" 
types 1 per cent. Workers were unrepresented at the remaining 21 per cent of 
hearings. 



Page 35 



Annual Report 1991 



When these figures are examined by region, as in Figure 7, we note some 
interesting variations from place to place. In the northern region, for example, 
company personnel were responsible for nearly 26 per cent of employer 
representation, and lawyers for as few as 1 5 per cent. In the southern region, 
by contrast, company personnel were noted less than 10 per cent of the time 
and consultants as often as 1 8 per cent. 



Figure 7 — TRIBUNAL HEARINGS REPRESENTATION PROFILE 



Representation by Region for Decisions Issued in 1991 

Eastern Northern Southern Toronto TOTAL 



(%) 



;%) 



(%) 



(%) 



(%) 



Employer 














Company Personnel 




17.9 


25.5 


9.5 


13.2 


14.3 


Consultant 




0.0 


3.1 


17.9 


11.9 


11.1 


Lawyer 




33.3 


15.3 


21.1 


25.7 


24.5 


No Representation 




35.9 


43.8 


35.8 


37.6 


38.0 


Office of the Employer 


Adviser 


7.7 


7.1 


10.5 


5.6 


6.3 


Other 




5.1 


5.1 


5.3 


5.0 


5.0 


Unknown 




0.0 


0.0 


0.0 


0.9 


0.7 


Worker 














Consultant 




0.0 


0.0 


2.1 


7.2 


5.6 


Lawyer or Legal Aid / assistant 


41.0 


21.4 


25.3 


23.6 


24.3 


No Representation 




17.9 


7.1 


11.6 


25.1 


21.5 


Office of the Worker Adviser 


28.2 


58.2 


24.2 


23.7 


27.6 


Other 




7.7 


4.1 


4.2 


5.2 


5.1 


Union 




5.1 


9.2 


32.6 


14.4 


15.3 


Unknown 




0.0 


0.0 


0.0 


0.9 


0.7 



Note: The overall representation proportions are most similar to the Toronto 

proportions because most hearings were conducted there. The Eastern region 
is represented by WCAT hearings in Ottawa, the Northern region by Sault Ste. 
Marie, Sudbury, Timmins, and Thunder Bay hearings, and the Southern region 
by London and Windsor hearings. 



For worker representation, consultants were less often present outside of Toronto. 
Of further note was the strong proportion of cases involving representation by 
the Office of the Worker Adviser in the northern region (58 per cent) 
compared with only 24 percent in Toronto. Also of interest was the large 
contingent of hearings involving workers represented by unions in the south- 
ern region (33 per cent) and the large contingent of hearings involving workers 
represented by lawyers or legal aid/ assistants in the eastern region (41 per cent). 



Page 36 



Annual Report 1991 



Decisions 

In 1 991 , 951 cases were closed by decision. Some of these cases involved more 
than one decision, because there were occasionally interim issues to be resolved 
before the final issue at appeal could be dealt with. The total number of 
decisions reached 1 ,064. The breakdown by appeal type is given in Figure 8, 
and by decision type in Figure 9. 

The figure for total decisions released in 1991 is nearly identical to the figure 
reported for the previous year. In 1991, there were only 19 fewer decisions 
released. However, the number of cases closed by decision in 1991 decreased 
more noticeably (951 in 1991 compared to 985 in 1990). This is because in 
1 991 interim decisions comprised a larger proportion of the decisions issued 
(10.9 per cent, compared with 6.3 per cent in 1 990). 



Figure 8 — HEARINGS AND DECISIONS 



By Appeal Type in 


1991 












Type 


Scheduling 


Hearings t 


Cases 


Decisions 


Cases Closed 




Dates Arranged 




Heard 


Issued 


by 


Decision 


Section 15 


103 


67 


55 


58 




51 


Section 21 


44 


22 


22 


27 




29 


Section 77 


170 


161 


157 


156 




151 


Section 86o 


30 


31 


31 


38 




36 


Entitlement / Other 


952 


857 


751 


710 




623 


Reconsideration 


76 


76 


69 


75 




61 



TOTAL 



1,375 



1,214 



1,085 



1,064 



951 



* Hearings include oral hearings, written submissions, motions days and panel assignments for 
reconsideration requests 



Figure 9 — DECISIONS ISSUED 



By Decision Type 












Interim 


Final 


Addendum 


Total 


Appeal Issues 


108 


878 


3 


989 


Reconsideration Issues 


8 


63 


4 


75 



1,064 



Page 37 



Annual Report 1991 



Cases in Inventory 

As of December 31 , 1 991 , the Tribunal in the course of its existence had received 
1 1 ,1 58 cases, and had closed 9,823. This left 1 ,335 in the total case inventor/. 

Of these cases, 859 (or 64 per cent) could be considered "active". An additional 
364 (or 27 per cent) were "inactive", either in temporary "on hold" stages 
within the Tribunal (68 at the intake stage waiting for information, 189 
scheduled and awaiting their hearing, and 80 at the post hearing stage awaiting 
responses to an interim decision) or in an indefinite "on hold" stage at the 
WCB pending their review for the chronic pain issue (27 cases). 

Of the 859 "active" cases, 367 (43 per cent) had not yet reached the hearing stage. 
Of these, 87 were being processed in intake prior to assignment to lawyers or 
pre-hearing legal workers in TCO, 79 were active in TCO with a case 
description being prepared. Sixty-eight were being prepared for scheduling, 
and 133 were in the process of being scheduled. 

Four hundred and ninety-two cases (57 per cent) had moved beyond the hearing 
stage. Most of these (456) were either at post-hearing work, having a decision 
prepared, or were recessed or adjourned. The remaining cases (36) had 
decisions written and released or were otherwise effectively resolved, and were 
in the final file-closing process. 

The active and inactive categories account for 1 ,223 cases. The remaining 1 12 
cases in inventory related to post-decision issue requests, where theTribunal 
was being asked to reconsider earlier ru lings (62 cases), or where there was an 
Ombudsman's investigation (43) or judicial review application (7) underway. 
(Figure 10) 



Figure 10 — STATUS OF OPEN CASES 



A) INACTIVE CASES 

Cases waiting for WCB files: 27 27 
Cases at WCAT: 

Intake: Awaiting case information 68 

Pre-hearing: Awaiting hearing date 189 

Post-hearing: Awaiting resolution 

of interim matter 80 337 364 

B) ACTIVE CASES 

Cases at WCAT: 

Pre-hearing assignment 87 

Case description writing 79 

Pre-scheduling 68 

Scheduling 133 

Post-hearing 218 

Decision writing in progress 238 

File closing 36 859 859 

C) POST-DECISION ISSUES 

Ombudsman review cases 43 

Requests for reconsideration 62 

Judicial review 7 112 112 



TOTAL as at December 31, 1991 1,335 



Page 38 



Annual Report 1991 



FINANCIAL MATTERS 

As we present this Annual Report, the Statement of Expenditures for the year 
ended December 31 , 1 991 , which follows, has not yet been subject to audit. 
A variance Statement also is included. 

In 1991, the accounting firm ofDeloitte and Touche completed a financial audit 
on the Tribunal's financial statements for the period ending Decembei 31 , 
1990. The audit report is included as Appendix B. 



Figure 11 — STATEMENT OF EXPENDITURES 



As at December 31, 1991 (in $000's) 



Salaries and Wages 

1310 Salaries & Wages - Regular 
1320 Salaries & Wages - Overtime 
1325 Salaries & Wages - Contract 
1510 Temporary Help - Go Temp. 
1520 Temporary Help - Outside Agencies 

Total Salaries and Wages 

Employee Benefits 

2110 Canada Pension Plan 
2130 Unemployment Insurance 
2220 Public Service Pension Fund 
2260 Unfunded Liab. - PSPF 
2310 Ontario Health Tax 
2320 Suppl. Health & Hospital Plan 
2330 Long-term Income Protection 
2340 Group Life Insurance 
2350 Dental Plan 
2410 Workers' Compensation 
2520 Maternity Supp. Benefit All. 
2620 Death Benefits 
2990 Benefits Transfer 

Total Employee Benefits 



1991 


1991 


BUDGET 


ACTUAL 


6,116.0 


5,820.5 


25.0 


10.4 


116.0 


326.2 


10.0 


0.0 


90.0 


55.6 



6,356.0 



6,212.6 



78.4 

143.6 

313.5 

125.4 

120.0 

38.8 

26.5 

11.0 

42.8 

0.0 

16.5 

2.0 

-3.5 



826.0 



915.1 



Page 39 



Annual Report 1991 



STATEMENT OF EXPENDITURES -CONTINUED 



As at December 31, 1991 (in $000's) 



Transportation & Communication 

3110 Courier/Other Delivery Charges 

3111 Long Distance Charges 

3112 Bell Tel. - Service, Equipment 

3113 On-Line Communications 
3210 Postage 

3610 Travel - Accommodation & Food 

3620 Travel - Air 

3630 Travel - Rail 

3640 Travel - Road 

3660 Travel - Conferences, Seminars 

3680 Travel - Attendance (Hearings) 

3690 Travel - Professional/Public Outreach 

3720 Travel - Other 

3721 Travel - PT Vice-Chair & Reps. 

Total Transportation & Communication 



1991 


1991 


BUDGET 


ACTUAL 


40.0 


39.9 


16.0 


12.6 


28.0 


24.3 


60.0 


69.3 


23.0 


14.9 


60.0 


66.8 


57.0 


71.0 


4.0 


4.7 


29.0 


37.5 


25.0 


29.6 


60.0 


48.5 


5.0 


1.3 


3.0 


3.9 


48.0 


42.5 



458.0 



466.6 



Services 



4124 External Education & Training 
4130 Advertising - Employment 
4210 Rentals - Computer Equipment 
4220 Rentals - Office Equipment 
4230 Rentals - Office Furniture 
4240 Rentals - Photocopying 

4260 Rentals - Office Space 

4261 Rentals - Hearing Rooms 
4270 Rentals - Other 

4340 Receptions - Hospitality 

4341 Receptions - Rentals 

4350 Witness Fees 

4351 Process Services - Subpoenas 

4360 Per Diem Allowances - PT VC & Reps. 
4410 Consultants - Mgt. Services 
4420 Consultant - System Development 

4430 Court Reporting Services 

4431 Consultants - Legal Services 
4435 Transcription 

4440 Med. Fee - Per Diem/Retainer/Rep. 
4470 Print - Dec./Newsltrs/Pamphlets 
4520 Repair/Main.-Furnit./Off. Equipment 

4710 Other - incl. Membership Fees 

4711 Translation & Interpret. Ser. 

4712 Staff Development - Course Fees 

4713 French Translation Services 
4715 Services - WCB 

Total Services 



5.0 


0.0 


12.0 


5.7 


125.0 


12.9 


2.0 


1.5 


1.0 


0.3 


125.0 


99.9 


984.0 


963.4 


28.0 


29.2 


1.0 


1.3 


30.0 


25.7 


1.0 


0.7 


25.0 


14.0 


5.0 


3.9 


500.0 


477.2 


30.0 


38.4 


40.0 


29.8 


120.0 


101.1 


40.0 


19.8 


180.0 


180.5 


200.0 


238.1 


135.0 


71.3 


120.0 


130.9 


50.0 


45.2 


50.0 


38.4 


40.0 


41.1 


10.0 


11.4 


0.0 


185.8 



2,859.0 



2,767.7 



Page 40 



STATEMENT OF EXPENDITURES - CONTINUED 



Annual Report 1991 



As at December 31, 1991 (in $000's) 



Supplies & Equipment 

5090 Projectors, Cameras, Screens 

5110 Computer Equip, incl. Software 

5120 Office Furniture & Equipment 

5130 Office Machines 

5710 Office Supplies 

5720 Books, Publications, Reports 

Total Supplies & Equipment 

TOTAL OPERATING EXPENDITURES 

Capital Expenditures 

TOTAL EXPENDITURES 



1991 


1991 


BUDGET 


ACTUAL 


0.0 


0.0 


90.0 


182.6 


30.0 


24.2 


0.0 


4.7 


140.0 


135.5 


40.0 


45.7 


300.0 


392.7 


10,799.0 


10,754.7 


25.0 


7.4 


10,824.0 


10,762.1 



Figure 12 — VARIANCE REPORT 1991 



As at December 31, 1991 (in $000's) 





1991 


1991 


Variance 




Budget 


Actual 


$ 


% 


Salaries and Wages 


6,356.0 


6,212.6 


143.4 


2.3 


Employee Benefits 


826.0 


915.1 


-89.1 


-10.8 


Transportation and Communications 


458.0 


466.6 


-8.6 


-1.9 


Services 


2,859.0 


2,767.7 


91.3 


3.2 


Suppies and Equipment 


300.0 


392.7 


-92.7 


-30.9 


Total Operating Expenditures 


10,799.0 


10,754.7 


44.3 


0.4 


Capital Expenditures 


25.0 


7.4 


17.6 


70.3 


Total Expenditures 


10,824.0 


10,762.1 


61.9 


0.6 



Page 41 



Annual Report 1991 



APPENDIX A 



VICE-CHAIRS AND MEMBERS 
IN 1991 



Full-time 



Date of First Appointment 



Chair 

Ellis, S. Ronald 

Alternate Chair 

Bradbuiy, Laura 
Kenny, Lila Maureen 

Vice-Chairs 

Bigras, Jean Guy 
Bradbury, Laura 
Cook, Brian 
Kenny, Lila Maureen 
McCombie, Nick 
Mclntosh-Janis, Faye 
Moore, John P 
Newman, Elaine 
On en, Zeynep 
Sandomirsky, Janice R 
Signoroni, Antonio 
Starkman, David K.L. 
Strachan, Ian 



October 1, 1985 



June 1, 1988 (Resigned June 28, 1991; 
September 1, 1991 



May 14, 1986 
October 1, 1985 
September 6, 1991 
July 29, 1987 
January 22, 1991 
May 14, 1986 
July 16, 1986 
February 1, 1991 
October 1, 1988 
July 3, 1990 
October 1, 1985 
August 1, 1988 
October 1, 1985 



Members Representative of Workers 



Cook, Brian 
Cook, Mary 
Crocker, Jim 



October 1, 1985 
November 1, 1990 
August 1, 1991 



1 Mr. Cook resigned as a worker member on September 6, 1 99 1 . He was appointed 
a Vice-Chair on that day. 



Page 43 



Annual Report 1991 



Heard, Lome (on leave) 
Jackson, Faith 
Lebert, Raymond J. 
McCombie, Nick 
Robillard, Maurice 
Shartal, Sarah 
Thompson (Fuhrman), Patti 



Oaober 1, 1985 
December 11, 1985 
Junel, 1988 
Oaober 1, 1985 1 
March 11, 1987 
November 14, 1990 
May 14, 1986 



Members Representative of Employers 



Apsey, Robert 
Barbeau, Pauline 
Chapman, Stanley 
Jago, W. Douglas 
Meslin, Martin 
Nipshagen, Gerry M. 
Preston, Kenneth 



December 11, 1985 
January 15, 1990 
July 16, 1990 
October 1, 1985 
December 11, 1985 
Oaober 1, 1988 
Oaober 1, 1985 



Part-time 

Vice-Chairs 

Chapnik, Sandra 
Faubert, Marsha 
Flanagan, Bill 
Harris, Dan 
Hartman, Ruth 
Lax, Joan 
Marafioti, Victor 
Marcotte, William A. 
McGrath, Joy 
PfeifFer, Byron E. 
Robeson, Virginia 
Singh, Vara 
Sperdakos, Sophia 
Stewart, Susan L. 
Sutherland, Sara 



March 11, 1987 
December 10, 1987 
June 1, 1991 
April 15, 1991 
December 11, 1985 
May 14, 1986 
March 11, 1987 
May 14, 1986 
December 10, 1987 
March 15, 1990 
March 15, 1990 
June 1, 1991 
May 14, 1986 
May 14, 1986 
September 6, 1991 



Mr. McCombie resigned as a worker member on January 22, 1991. He was 
appointed a Vice-Chair on that day. 



Page 44 



Annual Report 1991 



Members Representative of Workers 



Beattie, David Bert 
Drennan, George 
Felice, Douglas H. 
Fenton, Julie 
Ferrari, Mary 
Fox, Sam 
Fuhrman, Patri 
Higson, Roy 
Klym, Peter 
Rao, Fortunato 



December 11, 1985 
December 11, 198 5 
May 14, 1986 
December 19, 1991 
May 14, 1986 
June 20, 1991 
May 14, 1986 1 
December 11, 1985 
May 14, 1986 
February 11, 1988 



Members Representative of Employers 

Clarke, Kenneth August 1, 1989 



Howes, Gerald 
Jewell, Donna Marie 
Kowalishin, A. Teresa 
Ronson, John 
Seguin, Jacques A. 
Shuel, Robert 
Sutherland, Sara 



August 1, 1989 
December 11, 1985 
May 14, 1986 
December 11, 1985 
July 1 , 1986 
August 1, 1989 
December 17, 1987 2 



VICE-CHAIRS AND MEMBERS — 
RE-APPOINTMENTS 

In 1 991 , the Tribunal Chair, full- and part-time Vice-Chairs and Members, were 
re- appointed to the Appeals Tribunal for the terms indicated below: 



Full-time 



Date of Re- Appointment Term (in years) 



Tribunal Chair 

Ellis, S. Ronald 



October 1, 1991 



Vice-Chairs 

Moore, John 



May 1,1991 



1 Ms. Furhman's (Thompson's) appointment became full-time, effective October 9, 
1991. 

2 Ms. Sutherland resigned as an employer Member on September 6, 1991. She was 
appointed a part-time Vice-Chair on that day. 



Page 45 



Annual Report 1991 



Onen, Zeynep Oaober 1, 1991 3 

Signoroni, Antonio Oaober 1, 1991 3 

Strachan, Ian May 1, 1991 3 

Members Representative of Employers 

Apsey, Robert December 11, 1991 3 

Meslin, Martin August 1, 1991 3 

Members Representative of Workers 

Lebert, Ray June 1, 1991 3 

Part-time 

Vice-Chairs 

Hartman, Ruth December 11, 1991 3 

Members Representative of Employers 

Ronson, John December 1 1 , 1 99 1 3 

Members Representative of Workers 

Beattie, David Bert December 1 1 , 1 99 1 3 

Drennan, George December 11, 1991 3 

Fox, Sam June 20, 1991 1 

Higson, Roy December 11, 1991 3 

Rao, Fortunato February 11,1991 3 

VICE-CHAIRS AND MEMBERS — 
EXPIRED APPOINTMENTS 
AND RESIGNATIONS 

The following is a list of Order- in-Council appointments who resigned or whose 
appointments expired during 1991. 

Bradbury, Laura, Vice-Chair and Alternate Chair 

Chapnik, Sandra, Vice-Chair (part-time) 

Clarke, Kenneth, Member Representative of Employers (part-time) 

Jewell, Donna, Member Representative of Workers (part-time) 

Lax, Joan, Vice-Chair (part-time) 

Marcotte, William, Vice-Chair (part-time) 

Starkman, David K.L., Vice-Chair 



Page 46 



Annua! Refxirt 1 ( )')1 



NEW APPOINTMENTS DURING 1991 

Maureen Kenny 

(Alternate Chair) September 1 , 1991 

The position of Alternate Chair involves both senior management and adjudica- 
tive functions. The Alternate Chair is also the "vice-chair" who, according to 
the provisions of the Workers' (Compensation Act, is to act in the ("hair's place, 
should he be absent from Ontario or otherwise unable to act. Maureen Kenny 
was appointed as theTribunal's Alternate Chair on September 1 , 1 991. Her 
appointment as a Vice-Chair was first made on July 30, 1 987. From October 
1985 until that time, Ms. Kenny was employed as theTribunal's Counsel to 
the Chair. Previously, she had been a policy analyst with the (Ontario) 
Ministry of Labour and had practised labour law. She is well experienced in 
workers' compensation and administrative law matters. 

Brian Cook 

(Full-time Vice-Chair) September 6, 1991 

Mr. Cook's appointment as a full-time Vice-( 'hair marked the second time that 

one of the Tribunal's Representative Members was appointed to this position. 

He was first appointed to the Tribunal in October 1985 as a full-time Member 

representative ofworkers. 

Jim Crocker 

(Full-time Member representative ofworkers) August 1, 1991 

Jim ("rocker is an experienced workers' compensation advocate who, at the time 

of his appointment to the Appeals Tribunal, was Chair of the CAW's Workers' 

Compensation Committee. 

Julie Fenton 

(Part-time Member representative ofworkers) December 19, 1991 
Ms. Fenton has worked with the (Canadian Labour Congress for 1 5 years, and is 
currently a member of the OPEIU pension negotiating committee and is her 
union local's fourth vice-president. She is fluent in the French language. 

Bill Flanagan 

(Part-time Vice-Chair) June 1, 1991 

Bill Flanagan is a visiting professor of law at Osgoode Hall Law School with an 
interest in the area of administrative law. Professor Flanagan has graduate 
degrees in law from Columbia University and the University of Paris I 
(Sorbonne). 



Page 47 



Annual Report 1991 



Dan Harris 

(Part-time Vice-Chair) April 15, 1991 

Dan Harris is currently in practice in Toronto as a labour arbitrator. He is also a 

referee and adjudicator at the Office of Adjudication. He was called to the Bar 

of Ontario in 1984. 

Nick McCombie 

(Full-time Vice-Chair) January 22, 1991 

Nick McCombie was the first of the Tribunal's Representative Members to be 
appointed as a Vice-Chair. He was first appointed to the Tribunal in October 
1 985 as a full-time Member representative of workers. Mr. McCombie is one 
of the authors of a textbook on workers' compensation. 

Elaine Newman 

(Full-time Vice-Chair) February 1, 1991 

Elaine Newman was first employed as a senior lawyer in the Tribunal's Counsel 
Office in 1985. In July 1986, she was appointed as a Vice-Chair. From 
September 1 988 to June 1 989, Ms. Newman was the Tribunal's General 
( Counsel. She left at that time to take up a position in private practice where 
she was very active in a counsel and consulting role in the workers' compen- 
sation field, acting for both workers and employers. 

Vara Singh 

(Part-time Vice-Chair) June 1, 1991 

Prior to her appointment at the Appeals Tribunal, Dr. Singh was an adjudicative 
member of the Immigration and Refugee Board of Canada for two years. She 
has doctorate degrees in zoology and education, and a Master's degree in social 
work. 

Sara Sutherland 

(Part-time Vce-Chair) September 6, 1991 

Ms. Sutherland's appointment as a part-time Vice-Chair is the third appointment 
of a Tribunal Representative Member to a Vice-Chair position. She is cur- 
rently in her third year of law school. Prior to entering law school, Ms. 
Sutherland had a long career with Ontario Hydro. She was first appointed a 
part-time member representative of employers in 1 987. 

Patti (Fuhrman) Thompson 

(Full-time Member representative of workers) October 9, 1991 
Patti Thompson was first appointed to the Tribunal as a part-time worker 
Member in May 1 986. Prior to her full-time appointment, Ms. Thompson 
was an employment equity consultant with the Toronto-Dominion Bank and 
an OPSEU nominee in Ontario Labour Relations Cases. 



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Annual Report 1991 



SENIOR STAFF 

The following is a list of the senior staff who were employed at the Appeals 
Tribunal during the reporting period. 



Beverley Dalton Chief Administration Officer 

Linda Moskovits Chief Information Officer 

Eleanor Smith Tribunal General Counsel 

Peter Taylor Manager, Financial Administration 

Carole Trethewey Counsel to the Tribunal ("hair 



MEDICAL COUNSELLORS 

The following is a list of the Tribunals Medical Counsellors. 

Dr. Douglas P. Bryce Otolaryngology 

Dr. W R. Harris Orthopaedics (Acting) 

Dr. F. H. Lowy Psychiatry 

Dr. Robert L. MacMillan Internal Medicine 

Dr. Thomas R Morley Neurology 

Dr. John S. Speakman Ophthalmology 

Dr. Neil Watters General Surgery 



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Annual Report 1991 



APPENDIX B 



WORKERS' COMPENSATION APPEALS TRIBUNAL 

REPORT AND FINANCIAL STATEMENTS 
DECEMBER 31, 1990 

Auditors' Report 



To the Workers' Compensation Appeals Tribunal 

We have audited the balance sheet of Workers' Compensation Appeals Tribunal 
as at December 31. 1990 and the statements of expenditures and Workers' 
Compensation Board funding for the year then ended. These financial 
statements are the responsibility of the Tribunals management. Our respon- 
sibility is to express an opinion on these financial statements based on our 
audit. 

We conducted our audit in accordance with generally accepted auditing stand- 
ards. Those standards require that we plan and perform an audit to obtain 
reasonable assurance whether the financial statements are free of material 
misstatement. An audit includes examining, on a test basis, evidence support- 
ing the amounts and disclosures in the financial statements. An audit also 
includes assessing the accounting principles used and significant estimates 
made by management, as well as evaluating the overall financial presentation. 

In our opinion, these financial statements present fairly, in all material respects, 
the financial position of the Tribunal as at December 31 , 1 990 and the results 
of its operations and Workers' Compensation Board funding for the year then 
ended in accordance with the accounting policies described in Note 2 to the 
financial statements. 



Deloitte and Touche 
Chartered Accountants 
Toronto, Ontario 
November 1, 1991 



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Annual Report 1991 



BALANCE SHEET 

As at December 31, 1990 



1990 1989 



ASSETS 

Cash in bank $ 616,000 $ 

Receivable from Workers' Compensation Board 1 ,51 1 ,500 2,260,400 

Salary and wages recoverable 23,600 $ 

Accounts receivable 8,300 8,400 

$2,159,400 $2,268,800 

LIABILITIES 

Bank indebtedness $ - $318,400 

Accounts payable and accrued liabilities 759,400 550,400 

Operating advance from Workers' Compensation Board 1 ,400,000 1 ,400,000 

$2.159.400 $2.268.800 

Approved on Behalf of the Tribunal 
S.R. Ellis, Chairman 



STATEMENT OF EXPENDITURES 
Year Ended December 31, 1990 



Salaries and wages 

Employee benefits 

Transportation and communication 

Services 

Supplies and equipment 

Total operating expenditures 

Capital expenditures 

Total expenditures 



STATEMENT OF WORKERS' 
COMPENSATION BOARD FUNDING 
Year Ended December 31, 1990 



1990 1989 



$5,400,500 


$4,656,300 


760,600 


447,800 


423,600 


41 7,300 


2,542,900 


2,633,900 


268.700 


193.600 


9,396, 300 


8,348,900 


53.200 


148.500 


$9,449,500 


$8,497,400 



1990 1989 



Recoverable expenditures $ 9,449,500 $ 8,497,400 

Reimbursement from WCB 10.198.400 8.548.800 

Change in receivable from WCB (748,900) (51 ,400) 

Receivable from WCB — beginning of year 2.260.400 2.311.800 

Receivable from WCB — end of year $1.511.500 $2.260.400 

See accompanying notes to financial statements. 



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Annual Report 1991 



NOTES TO FINANCIAL STATEMENTS 
December 31, 1990 

1 . General 

The Tribunal was created by the Workers' Compensation Amendment Act, S.O. 
1 984, Chapter 58 - Section 32, which came into force on October 1 , 1985. 

The purpose of the Tribunal is to hear, determine and dispose of in a fair, impartial 
and independent manner, appeals by workers and employers from decisions, 
orders or mlings of the Workers' Compensation Board ("WCB"), and any 
matters or issues expressly conferred upon the Tribunal by the Act. 

2. Significant Accounting Policies 

The Tribunal's financial statements are prepared in accordance with generally 
accepted accounting principles except for capital expenditures which are 
charged to expense in the year of acquisition. 

3. Commitments 

The Tribunal has commitments under an operating lease requiring minimum 
annual lease payments as follows: 

1991 780,960 

1 992 780,960 

1 993 780,960 

1994 780,960 

1 995 and thereafter $1.041.280 

$4.165.120 



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